THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


GIFT  OF 

Judge  Leon  T#   David 


THE    LAW 


OF 


MUNICIPAL     CORPORATIONS 


THE      LAW 


OF 


Municipal  Corporations 


BY 

JOHJSr    F.     DILLON,    LL.  D., 

THE  CIRCUIT  JUDGE  OF  THE  UNITED  STATES  FOR  THE  EIGHTH  JUDICIAL  CIRCUIT, 

PROFESSOR  OF  LAW  IX  THE  UNIVERSITY  OF  IOWA,  AND  LATE  ONE 

OF  THE  JUSTICES  OF  THE  SUPREME  COURT  OF  IOWA 


SECOND  EDITION  — REVISED  AND   ENLARGED 


VOL.    I, 


NEW-YORK 

JAMES     COCKCROFT     &     CO 

1873 


T 
\tl3 


Entered,  according  to  Act  of  Congress,  in  the  year  1873, 

By  JOHN  F.  DILLON, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


Press  of  Tobitt  &  Bukce,  New  York. 


in 

to 


TO     THE     HONORABLE 

SAMUEL    F.    MILLER,    LL.D., 

ASSOCIATE  JUSTICE  OF  THE  SUPREME  COURT 
OF  THE  C KITED  STATES. 

WHETHER    I    SHARE    IN    THE 

GENERAL    ADMIRATION     OF    YOUR    JURIDICAL    TALENTS, 

OR    LISTEN    TO    THE    MORE     PERSUASIVE    SUGGESTIONS    OF    A    VOICB 

THAT     COMES    TO     ME    FROM 

„ONO    ASSOCIATION    AT    THE    BAR    AND     TPON    THE    BENCH, 

THERE    IS    NO    ONE    TO    WHOM    I    OaN    INSCRIBE, 

SO     FITTINGLY    AS    TO    YOURSELF, 

A  WORK 

RELATING.    TO    AN    IMPORTANT    BRANCH    OF    THAT    SCIENCK 

WHICH    YOU    HAVE    STUDIED    SO    DEEPLY 

AND    UNDERSTAND    SO    WELL. 


PKEFACE    TO    SECOND    EDITION. 


The  favor  accorded  to  this  treatise  by  the  profession  is 
gratifying  to  the  author  and  compensates  for  the  great 
labor  of  its  preparation.  Nothing  can  be  more  pleasing  to 
an  author  than  the  knowledge  that  the  studious  care  given 
to  a  work  is  appreciated  by  those  for  whom  it  was  written  : 
their  approving  opinion  is  the  reward  he  covets  and  enjoys 

The  First  Edition,  published  about  twelve  months  ago, 
and  of  nearly  double  the  usual  size,  has  been  exhausted,  and 
at  the  request  of  the  publishers  the  Second  Edition  has 
been  prepared.  As  before,  this  has  been  the  personal  labor 
of  the  author.  All  reported  cases,  decided  since  the  first 
publication,  have  been  examined  and  the  text  and  notes 
prepared  without  the  assistance  of  others.  While  this  edi- 
tion embraces  a  summary  of  recent  cases  to  the  latest  date 
and  contains  substantial  additions,  the  structure  of  the 
work  is  unaltered.  Some  new  sections  have  been  added  and 
others  re-written.  The  principal  changes  have  been  made 
in  the  chapters  which  treat  of  Municipal  Securities.  Taxes, 
and  Assessments.     The  amount  of  negotiable  bonds  of 


viii  PREFACE. 

Municipalities  largely  exceeds  the  sum  of  the  indebtedness 
of  all  the  States,  and  it  has  been  the  earnest  endeavor 
herein  to  exhibit  accurately  the  American  law  upon  this 
important  subject. 

In  conclusion,  it  is  deemed  fitting  to  express  to  the 
Bench  and  Bar  of  the  country  a  sincerely  grateful  appreci- 
ation of  the  favorable  judgment  already  pronounced,  and  a 
hope  that  the  same,  upon  further  examination  of  the  work, 
may  be  neither  reversed  nor  modified. 

J.  F.  D. 

Davenport,  Iowa,  1873. 


PREFACE    TO    FIRST    EDITION. 


The  necessity  lor  a  work  upon  Municipal  Corporations  was  so 
seriously  felt  by  the  author  when  holding  a  seat  on  (he  Supreme 
Bench  of  a  state  where  questions  relating  to  the  powers,  duties,  and 
liabilities  of  municipalities  were  presented  at  almost  every  term, 
that  he  resolved,  eight  years  ago  and  more,  to  endeavor  to  supply 
the  want.  Although  the  subject  is  one  of  unsurpassed  practical  im- 
portance, since  nearly  every  considerable  city  and  town  in  the 
United  States  is  incorporated,  no  American  work  upon  it  has  ever 
appeared.  A  careful  examination  of  the  English  treatises  satisfied 
the  author  that  they  were,  in  a  great  measure,  inapplicable  here,  and 
that  they  fail  to  cover  a  large  portion  of  the  existing  field  of  the 
law  upon  the  subject  as  enlarged  by  American  legislation  and 
practice.  True,  our  municipal  system,  like  the  body  of  our  jurispru- 
dence, was  derived  from  England,  but  it  is  remarkable  how  many 
changes  were  necessary  to  adapt  it  to  our  system  of  government 
and  mode  of  administration,  and  to  the  wants  and  situation  of  our 
people.  Accordingly,  if  the  municipalities  of  the  one  country  be 
closely  compared  with  those  of  the  other,  it  will  be  found  that  in 
their  structure,  powers,  and  workings,  they  present  quite  as  many 
points  of  difference  as  of  similarity. 

We  have  popularized  and  made  use  of  municipal  institutions  \o 
such  an  extent  as  to  constitute  one  of  the  most  striking  features  of 
our  government.  It  owes  to  them,  indeed,  in  a  great  degree,  its 
decentralized  character.  When  the  English  Municipal  Corporations 
Reform  Act  of  1835  was  passed  there  were  in  England  and  Wales, 
excluding  London,  only  two  hundred  and  forty-six  places  exercising 
municipal  functions;  and  their  aggregate  population  did  not  exceed 


x  PREFACE. 

two  millions  of  people.  In  this  country  our  municipal  corporations 
are  numbered  by  thousands,  and  the  inhabitants  subjected  to  their 
rule  by  millions. 

Our  municipalities  are  habitually  clothed  by  the  legislatures 
with  extensive,  important,  and  diversified  powers,  and  consequently 
possess  a  much  more  composite  character  than  in  England  or  else- 
where. Strictly,  a  municipal  corporation  is  an  institution  designed 
to  regulate  and  administer  the  mere  local  or  internal  concerns  of 
the  incorporated  place  in  matters  pertaining  to  it  and  not  relating 
directly  to  the  people  of  the  state  at  large.  But  in  this  country, 
much  more  generally  than  in  England,  it  is  the  practice  to  make 
use  of  the  municipality,  or  of  its  officers,  as  agencies  of  the  State, 
for  the  exercise,  on  its  behalf,  of  public,  in  addition  to  corporate, 
duties  and  functions.  From  the  difference  between  these  two 
classes  of  powers  the  American  courts  have  deduced  consequences  so 
important  that  it  is  as  necessary,  as  it  is  oftentimes  difficult,  to  dis- 
tinguish between  them.  Besides,  it  has,  unfortunately,  become 
quite  too  common  with  us  to  confer  upon  our  corporations  extra- 
ordinary powers,  such  as  the  authority  to  aid  in  the  construction  of 
railways,  or  like  undertakings,  which  are  better  left  exclusively  to 
private  capital  and  enterprise,  and  to  create,  in  their  corporate 
capacity,  indebtedness  therefor,  enforceable  by  actions  in  the  courts, 
and  which  must  be  paid  by  taxation. 

Invested,  also,  within  certain  limits,  with  delegated  legislative 
authority  concerning  the  property  and  conduct  of  their  inhabitants  ; 
with  power,  more  or  less  extensive,  to  acquire  and  dispose  of  jirop- 
erty;  with  the  power  to  elect  their  own  officers;  to  make  contracts; 
to  incur  liabilities  ;  to  exercise  Eminent  Domain  ;  and  the  equally 
momentous  power,  to  levy  and  collect  taxes,  general  and  special : 
these  corporate  agencies  are  thus  brought  into  intimate  and  daily 
contact  with  the  most  important  rights  and  interests  of  their  inhab- 
itants, and  as  a  result,  we  have  an  amount  and  variety  of  litigation 
not  to  be  found  in  the  tribunals  of  other  countries.  In  no  English 
treatise  on  Municipal  Corporations  is  there  a  chapter  upon  the  sub- 
ject of  civil  actions  and  liabilities,  and  no  discussion  of  the  question 
as  to  their  amenability  to  respond  civilly  in  damages  to  individual 
for  acts  of  misfeasance,  or  for  neglect  of  duty ;  and  for  reasons  not 
material  to  be  here  stated,  the  occurrence  of  questions  of  this  kind 


PREFACE.  XI 

in  the  English  tribunals  has  been  comparatively  infrequent.  The 
American  Reports,  however,  teem  with  cases  on  this  subject,  and  the 
civil  liability  of  municipal  corporations  upon  contracts  and  for  torts, 
and  the  mode  of  enforcing  it,  are  with  us  the  most  important  prac- 
tical topics  requiring  treatment  in  a  work  of  this  character. 

There  being  no  American  work  on  this  branch  of  the  law,  and 
the  decisions  in  this  country  relating  to  it  being  scattered  through 
the  reports  of  the  federal  courts,  and  those  of  thirty-seven  states, 
there  was  little  to  guide  the  author,  either  as  to  the  arrangement  of 
his  subject  or  as  to  what  had  been  decided  by  the  courts  concerning 
it.  Accordingly,  he  had  no  resource  except  to  delve  laboriously  for 
his  materials  among  hundreds  of  volumes;  but  these  have,  one  by 
one,  been  examined  by  him  with  a  view  to  find  all  that  could  be  ad- 
vantageously used  to  illustrate  the  subject,  and  the  result  is  given, 
either  in  the  text  or  notes,  as  fully  as  it  was  practicable  within  the 
compass  of  a  single  volume.  Nor  has  he  overlooked  the  aid  to  be 
derived  from  other  sources.  Every  English  publication  relating  to 
the  subject  in  its  legal  or  practical  relations  has  been  subjected  to 
examination ;  books  which  could  not  otherwise  be  had  have  been 
specially  procured  from  abroad.  And,  throughout  the  present 
volume,  no  inconsiderable  pains  have  been  taken  to  set  forth  where- 
in the  English  and  American  municipalities  differ,  so  that  the  ap- 
plicability and  precise  legal  value  of  the  judicial  dicisions  of  the 
former  country  wo  aid  be  better  understood. 

When  the  work  was  resolved  upon,  the  author  hoped  to  proceed 
with  the  leisurely  care  that  would  enable  him  to  avoid  the  faults 
which  thorough  deliberation  might  result  in  correcting.  This  hope 
has  not  been  as  fully  realized  as  he  desired,  for  year  by  year  his 
official  duties  have  more  and  more  encroached  upon  his  time,  leaving 
for  this  work  only  the  diminishing  intervals  between  courts.  In  its 
preparation  he  has  often  envied  the  author  by  profession  the  oppor- 
tunity for  continuous  and  unbroken  labor,  and  he  cannot  but  feel 
that  if  his  work  had  not  been  prepared  in  fragments,  it  would  not  have 
fallen  both  so  far  below  his  ideal,  and  what,  under  more  auspicious 
circumstances,  he  himself  might  have  made  it.  It  is  hoped,  how- 
ever, if  it  shall  lack  the  symmetry  and  finish  such  an  author  would 
have  given  ic,  that  it  may  have  compensating  advantages  in  its 
thoroughly  practical  character  ;  and  these  it  will  surely  owe  to  that 


xii  PREFACE. 

experience  to  which  the  mere  student  or  professional  writer  must 
ever  be  a  stranger,  and  which  can  be  had  only  upon  the  bench  or  at 
the  bar. 

Some  peculiarities  in  the  manner  of  its  preparation  will  be  ob- 
served. The  aim  throughout  has  been  to  make  a  work  which  will 
be  useful  to  the  profession.  Aware  that  in  most  cases  access  to  com- 
plete law  libraries  cannot  be  had,  the  author  has  endeavored,  as  far 
as  practicable,  to  supply  this  want  and  to  make  the  text  and  notes 
exhibit  the  substance  of  the  adjudications.  This  explains  why  so 
much  care  has  been  taken  to  cite  the  cases  bearing  upon  the  sub- 
jects discussed,  and  accounts  for  the  fullness  of  proofs  and  illustra- 
tions to  be  found  in  the  notes. 

He  trustfully  submits  the  Work,  which  fills  up  the  interstices 
between  judicial  duties  for  nearly  nine  years,  to  the  profession  for 
whose  assistance  it  is  designed,  and  whose  final  judgment  on  it  will 
not  be  otherwise  than  just.  If  he  could  be  assured  that  it  has  a 
value  at  all  proportioned  to  the  labor  first  and  last  bestowed  upon  it, 
he  would  venture  to  hope  for  a  judgment  not  altogether  unfavorable. 

Davenport,  Iowa,  1872. 


TABLE    OF    CONTENTS. 


CHAPTER    I. 

MUNICIPAL   INSTITUTIONS — INTRODUCTORY  HISTORICAL  VIEW. 

Ancient  cities.  Grecian  cities.  Roman  municipalities.  State  of  towns  in 
Europe  after  the  fall  of  the  Roman  Empire.  Medieval  Charters.  Char- 
ters of  Community  in  Prance.  Modifications  of  Roman  municipal  sys- 
tem. Enfranchisement  of  towns  in  Spain,  and  its  causes.  Municipal 
system  of  Great  Britain.  Historical  sketch  of  Boroughs :  their  incorpo- 
ration and  distinctive  features.  Origin  of  popular  representation.  Lon- 
don and  its  municipal  history  and  charters.  Corruption  and  abuses  in 
the  English  municipal  corporations.  Reform  Act  of  1835.  Lord 
Brougham's  services  in  promoting  municipal  reform.  American  munici- 
pal system.  Its  early  origin.  Decentralized  character.  Operation  and 
effects.  Corruption  and  abuses.  Remedy  suggested.  Results  summed 
Up Sees.  1-8 

CHAPTER    II. 

CORPORATIONS  DEFINED   AND   CLASSIFIED. 

General  definition.  Municipal  corporations  defined.  Different  kinds  and 
grades  of  public  corporations.  Quasi  Corporations.  New  England  towns: 
powers  and  mode  of  government.  City  Governments.  The  State  as  a 
public  Corporation Sees.  8a-14 

CHAPTER    III. 

CREATION  AND   SEVERAL   KINDS   OF   MUNICIPAL   CORPORATIONS. 

In  England. — Royal  and  parliamentary  corporations.  The  old  English  mu- 
nicipal corporations.  Their  diverse  character.  Integral  parts.  Abuses 
in  municipal  rule.  Municipal  Reform  Corporations  Act  of  1835.  Abstract 
of  its  leading  provisions.  Constitutes  the  English  corporations  upon  an 
uniform  model. 

In  the  United  States. — Created  by  state  legislative  enactment.  Their  great 
numbers.  Creation  by  territorial  legislatures.  Special  Charters  and 
General  Incorporating  Acts.  Outline  of  ordinary  charter.  Advantage  of 
General  Incorporating  Acts.  Creation  by  implication.  Acceptance  of 
charter.  Submission  to  vote  of  inhabitants.  Special  constitutional  pro- 
visions and  their  construction.  General  and  special  acts.  Restriction 
on  municipal  powers.   Title  of  incorporating  Charter  or  Acts.    Sees.  15-28 


TABLE     OF     CONTENTS. 


CHAPTER    IV. 

PUBLIC   AND   PRIVATB  CORPORATIONS   DISTINGUISHED. — LEGISLATIVE  POWER 
AND    ITS    LIMITATIONS. 

Importance  of  the  distinction  between  public  and  private  corporations.  Dif- 
ference defined.  Scope  of  legislative  authority.  Complex  character  of 
ordinary  municipalities.  Distinction  between  public  or  state  and  munic- 
ipal or  local  powers.  Legislative  authority  over  corporate  funds  and 
revenues.  Limitation  in  favor  of  creditors.  Power  over  corporate  bound- 
aries and  public  property.  Whether  municipal  corporations  are  in  any 
respect  private.  Cases  cited  and  criticised.  Public  powers  and  rights 
held  at  the  will  of  the  legislature.  Creditor's  rights  cannot  be  impaired. 
Illustrations  from  decided  cases.  Extent  of  legislative  power  over  the 
private  property  of  municipal  corporations  discussed.  May  be  compelled 
by  the  legislature  to  pay  debts  not  legally  binding ;  and  to  incur  debts 
against  their  will.     Power  over  trust  property.  .         .         Sees.  29-47 

CHAPTER    V. 

MUNICIPAL    CHARTERS. 

General  Municipal  Powers. — Their  Nature  and  Construction. 

Charters  defined.  Judicially  noticed.  Proof  of  corporate  existence ;  user, 
legislative  recognition.  Repeals  and  amendments.  General  laws  and 
special  charters;  conflict;  constructions. 

Extent  of  power ;  limitations  ;  canons  of  construction.  Usage  as  affecting 
municipal  powers.  Discretionary  powers  not  subject  to  judicial  control. 
Public  powers  and  trusts  not  capable  of  delegation.  Legislative  powers 
incapable  of  surrender.  Mandatory  and  discretionary  powers;  difference 
defined  and  illustrated.  Revenues  exempt  from  judicial  seizure.  Gar- 
nishment.   Sees.  48-65 

CHAPTER    VI. 

MUNICIPAL   CHARTERS    (CONTINUED). 

Special  Powers  and  Special  Limitations. 


Wharves. 

Ferries. 

Borrowing  Money. 

Limitation  on  power  to  become  Indebted. 

Rewards  for  Offenders. 

Public  Buildings. 

Police  Powers  and  Regulations. 

Prevention  of  Fii'es. 

Quarantine  and  Health. 

Indemnifying  of  Officers. 


TABLE     OF     CONTENTS.  3 

11.  Furnishing  Entertainments. 

12.  Impounding  Animals. 

13.  Party  Walls. 

14.  Public  Defence. 

15.  Aid  to  Railway  Companies,  and  herein  of  the  constitutional  power 

of   the  legislature;  cases  cited.     Power  must  be  express.     Con- 
struction of  special  grants  of  power;  cases  cited.    .     Sees.  66-108 

CHAPTER    VII. 

DISSOLUTION   OF  MUNICIPAL   CORPORATIONS. 

In  England  :  1,  by  act  of  parliament;  2,  by  loss  of  integral  part;  3,  by  sur- 
render; 4,  by  forfeiture.  These  modes,  except  the  first,  not  applicable 
in  this  country.  Effect  of  dissolution  on  property  and  debts.  Authorities 
reviewed.     Revival  of  corporation  and  its  effect.      .         .     Sees.  109-116 

CHAPTER    VIII. 

CORPORATE   NAME,    BOUNDARIES,    AND   SEAL. 

Corporate  name.  Name  as  respects  grants  and  contracts.  Name  as  re- 
spects suits.  Corporate  boundaries.  Legislative  enlargement  of  terri- 
torial limits.  Territorial  division — its  effect  on  property  and  rights.  Cor- 
porate seal ;  proof  of Sees.  117-132 

CHAPTER    IX. 

MUNICIPAL   ELECTIONS   AND   OFFICERS. 

1.  Municipal  Popular  Elections. 

2.  Special  tribunal  to  determine  election  contests  for  municipal  office* 

3.  Power  to  create  and  appoint  municipal  officers. 

4.  Oath  and  Official  Bond. 

5.  Duration  of  Official  term. 

6.  Vacancies  in  Municipal  Offices. 

7.  Refusal  to  serve  in  office. 

8.  Resignation  of  Municipal  Office. 

9.  Compensation  of  Municipal  Officers. 

10.  Liability  of  the  corporation  to  the  officer. 

11.  Liability  of  the  officer  to  the  corporation  and  to  others, 

12.  Amotion  and  Disfranchisement Sees.  188-194 

CHAPTER    X. 

CORPORATE   MEETINGS. 

1.  Common  law  requisites  of  a  valid  corporate  meeting. 

2.  Notice  of  corporate  meetings  at  common  law  and  under  the  English 

Municipal  Corporations  Act. 


4  TABLE     OF    CONTENTS. 

3.  New  England  town  meetings ;  requisities  of  notice  and  power  or  ad- 

journment. 

4.  Constitution  and  meetings  of  councils  or  of  select  governing  bodies  ; 

and  herein  of  quorums  and  majorities;  of  integral  parts;  and 
of  stated  special,  and  adjourned  meetings. 

5.  Mode  of  proceeding  when  convened.         .         .         .     Sees.  195-230 

CHAPTER    XI. 

CORPORATE  RECORDS  AND  DOCUMENTS. 

Means  of  Evidence :  Clerk  pro  tern.  ;  power  to  amend  records ;  admissibility 
of  parol  evidence.  Eemedy  to  compel  delivery  of  books  and  records. 
Mandamus.  Replevin.  Inspection  of  corporate  documents  and  records. 
Records  as  evidence.     Originals  and  authenticated  copies.     Sees.  231-242 

CHAPTER    XII. 

MUNICIPAL   ORDINANCES,   OR  BY-LAWS. 

1.  Definition,  general  nature,  and  common  law  requisites  of  ordinances. 

2.  Signing,  publication,  and  recording. 

3.  Power  to  impose  fines,  penalties,  and  forfeitures. 

4.  On  whom  binding,  and  notice  thereof. 

5.  Ordinances    relating  to  the  licensing,  regulating,    and   taxing    of 

amusements  and  occupations,  including  the  sale  of  intoxicating 
liquors. 

6.  Ordinances  relating  to  public  offences. 

7.  Ordinances  relating  to  the  public  health,  safety,  and  convenience; 

herein  of  hospitals,  cemeteries,  and  burials;  nuisances;  markets 
and  inspection  regulations;  dangerous  occupations  and  practices; 
and  of  the  police  powers  and  general  welfare  clause  in  charters. 

8.  Mode  of  enforcing  ordinances;  herein  of  actions  and  prosecutions 

and  their  nature ;  mode  of  pleading  ordinances ;  requisites  of 
complaints  to  enforce  ordinances ;  construction ;  defences ;  evi- 
dence, &c Sees.  243-355 

CHAPTER    XIII. 

MUNICIPAL   COURTS. 

In  England,  and  at  common  law.  American  corporation  courts.  Consti- 
tutional provisions.  Construction.  Right  to  jury  trial.  Competency  of 
citizens  to  be  local  judges,  jurors,  and  witnesses.  Summary  convictions, 
when  valid.  Indictable  offences.  Distinctions.  Extent  of  jurisdiction. 
Jury  on  appeal.     Review  by  Superior  Courts.  .        .         .     Sees.  856-369 

CHAPTER   VL 

CONTRACTS. 

1.  Extent  of  power  to  contract,  and  how  conferred. 

2.  Mode  of  exercising  the  power. 


TABLE     OF     CONTENTS.  5 

8.  Seal  not  necessary  unless  required  ;   may  be  concluded  by  vote  or 
ordinance. 

4.  "When  bound  by  contracts  made  by  agens ;  mode  of  execution. 

5.  Contracts  beyond  corporate  powers  void ;  ultra  vires  a  defence. 

6.  Implied  contracts ;  when  deducible. 

7.  Ratification  of  unauthorized  contracts. 

8.  Provisions  requiring  letting  to  the  lowest  bidder. 

9.  Contract  of  suretyship. 

10.  Rights  and  liabilities  as  respects  authorized  contracts;  cases  men- 

tioned.    Power  to  settle  disputed  claims ;  to  give  extra  compensa- 
tion ;  to  employ  attorneys. 

11.  Contracts  for  public  works ;  rights  of  contractors. 

12.  Same:  corporate  control  under  stipulation. 

13.  Evidences  of  indebtedness ;  negotiable  bonds. 

14.  Ordinary  warrants  or  orders;  their  legal  nature. 

15.  Liability  of  indorsers  thereof. 

16.  Payment  and  cancellation  of  orders  and  warrants. 

17.  Rights  and  remedies  of  holders  thereof. 

18.  Defences  thereto ;  ultra  vires ;  fraud;  want  of  consideration. 

19.  Orders  payable  out  of  particular  fund. 

20.  Interest  on  corporate  indebtedness. 

21.  Railroad  aid  bonds ;  course  of  decision  in  United  States  Supreme 

Court. 

22.  Leading  cases  in  the  National  Supreme  Court  on  the  subject  noticed. 

23.  Decision  in  State  Courts  referred  to.     Author's  conclusions  stated. 

Sees.  370-426 

CHAPTER    XV. 

CORPORATE     PROPERTY. 

History  of  corporate  capacity  to  take,  hold,  and  dispose  of  property.  Re- 
sult stated.  Grants  to  corporations ;  statutes  of  mortmain ;  charter  the 
source  of  power;  power  to  take  by  devise  and  gift;  to  hold  in  trust; 
Girard's  will;  McDonough's  will;  McMicken's  will;  Mullanphy's  will; 
power  to  act  as  charitable  trustees ;  effect  of  corporation  exceeding  its 
power  to  hold  property;  alienation  of  property;  sales  on  execution; 
mode  of  alienation ;  mortgages.  Leases.  Conveyances  and  their  requi- 
sites       Sees.  427-451 

CHAPTER    XVI. 

EMINENT   DOMAIN. 

General  nature  of  the  power.  Constitutional  restrictions ;  legislature  may 
authorize  fee  to  be  taken  for  streets  and  public  places,  but  no  more  in 
amount  than  necessary ;  dower  in  streets  and  public  places ;  public  use  ; 
parks ;  ornamental  purposes ;  public  squares  ;  legislative  determination  of 
public  character  of  use,  how  far  conclusive;  authority  delegated  to  mu- 
nicipalities ;  construction  of  power.  Must  be  strictly  pursued  ;  illustra- 
tions;   right  of   municipal   authorities  to  abandon  proceedings;    when 


0  TABLE     OF    CONTENTS. 

right  ceases;  remedy  of  land  owner;  appeal;  certiorari;  injunction, 
special  remedies;  compensation,  when  to  be  made;  damages  and  benefits; 
assessments  upon  abutters;  tribunal  to  determine  amount ;  when  by  jury  ; 
amount  of  damages  ;  special  benefits  and  injuries;  rules  to  measure  dam- 
ages stated Secs-  452-488 

CHAPTER    XVII. 

DEDICATION. 

1.  Importance  of  the  doctrine  of  dedication. 

2.  Statutory  and  common  law  dedications. 

3.  Common  law  dedication;  rationale  and  requisites. 

4.  Extent  of  dedication  as  respects  the  donor. 

5.  Who  may  dedicate ;  intent;  how  established. 

6.  Effect  of  long  use  and  acquiescence. 

7.  Effect  of  platting  and  sale  of  lots. 

8.  Acceptance  by  the  public;  when  and  for  what  purpose  necessary. 

9.  Dedication  of  public  squares  and  their  uses. 

10.  Dedications  for  other  purposes. 

11.  Ali«nation  and  change  of  use. 

12.  Reverter;  misuser;  remedy Secs.  490-515 

CHAPTER    XVIII. 

STKEETS. 

Legislative  control.  Its  extent.  Legalization  of  obstructions.  Remedy 
by  indictment;  in  equity,  and  by  action.  Remedy  of  corporation  by 
ejectment  and  effect  of  judgment.  Vacation  of  streets.  Prescription  and 
adverse  possession.  Statute  of  limitations.  Highways  and  roads  within 
city  limits.  Municipal  authority  over  streets  and  their  uses.  Power  to 
improve  and  graduate;  exclusive  privileges  therein.  Gas  pipes;  water 
pipes;  telegraph  poles.  Openings  under  sidewalk.  Railroads  in  streets  : 
extent  of  legislative  authority.  Delegated  authority,  how  conferred  and 
construed  ;  rate  of  speed.  Horse  railways  in  streets  :  extent  of  municipal 
power;  its  construction  and  limitations;  rights  and  liabilities  of  the  com- 
pany; whether  an  additional  servitude;  cases  cited;  conclusions  stated. 
Bridges:  Construction,  repair,  and  liability.  Streets  primarily  for  public 
travel  and  use.  Limitations  on  free  transit  and  use.  Building  materials 
on  streets  and  sidewalks;  necessary  temporary  obstructions;  projecting 
shutters  and  doors .         Secs.  516-585 

CHAPTER    XIX. 

MUNICIPAL   TAXATION   AND   LOCAL   ASSESSMENTS. 

Nature  of  taxing  power.  Power  may  be  delegated  to  municipalities.  Re- 
strictions in  Federal  Constitution.  State  constitutional  provisions.  Local 
assessments  to  pay  for   local   improvements.     Constitutionality  of  special 


TABLE     OF     CONTENTS.  7 

assessments.  Provisions  of  State  Constitutions  construed.  Municipal 
power  to  tax  must  be  clear.  Construction  of  grants  of  this  character. 
Mode  of  exercising  power.  General  revenue  laws,  how  far  applicable  to 
municipalities  with  special  charters.  Exemption  from  taxation.  "  Tax  " 
and  "assessment"  distinguished.  Power  of  municipalities  to  tax  inca- 
pable of  delegation.  Is  a  continuing  one.  What  property  may  be,  and 
what  must  be,  taxed.  Taxations  of  trades  and  occupations.  Municipal 
taxation  ol  rural  lands.  Paving  streets.  What  the  power  to  pave  includes. 
Conditions  and  mode  of  exercise.  Drains  and  Sewers.  Mode  of  collecting 
general  and  special  taxes Sees.  586-660. 

CHAPTER  XX. 

MANDAMUS. 

1.  Definition  and  General  Nature  of  the  Remedy. 

2.  When  the  Writ  will  be  Granted  or  Refused. 

8.     Mandatory  and   Discretionary  Powers   as  respects  the  Remedy  by 
Mandamus. 

4.  Mandamus  as  respects   Municipal   Elections  and   Officers;  To  Take 

Office;  To  Admit  to  Office;  To  Restore  to  Office. 

5.  To  obtain  Possession  and  Inspection  of  Corporate  Books  and  Papers. 

6.  To  Enforce  Duties  Toward  Creditors. 

7.  Application  for  the  Writ — Affidavits — Relator — Rule. 

8.  Form,  Direction,  and  Service,  of  the  Writ. 

9.  The  Return  and  subsequent  proceedings. 

10.  Peremptory  Writ. 

11.  Attachment. 

12.  Judgment.  . Sees.  661-712. 

CHAPTER  XXL 

QUO   WARRANTO. 

Nature  of  proceeding.  Usurpation  of  municipal  office  and  franchises.  Va- 
lidity of  municipal  elections;  when  tested  on  mandamus  to  admit,  and 
when  by  quo  warranto.  Office  of  Writ  or  Information.  When  Writ  or 
Rule  granted;  when  .not.     Judgment.         .         .         .         Sees.  713-726. 

CHAPTER  XXII. 

REMEDIES   TO   PREVENT,  CORRECT,  AND  REDRESS,  ILLEGAL   CORPORATE  ACTS. 

1.  In  Equity  :     When  injunction  will  lie ;  At  whose  suit ;  Right  of  attor- 

ney general ;  Of  the  citizen  and  tax-payer;  When  equity  will  inter- 
fere to  prevent  abuse  or  misuse  of  corporate  powers ;  Illegal  appro- 
priations and  illegal  taxes. 

2.  Certiorari'    When   the  proper  remedy;   When  it  lies;   When  not; 

What  may  be  examined  under. 


I  TABLE     OF     CONTENTS. 

3.     Prohibition:     When  it  may  be  resorted  to,   and  the  nature  of  the 

remedy. 
4:     Indictment :    When  it  lies  against  the  corporation,  and  when  against 

its  officers .  Sees.  727  748. 

CHAPTER  XXTTI. 

CrVIL.   ACTIONS   AND   LIABILITIES. 

Actions  on  Contracts.     Sees.  749-751. 

1.  Liability  on  Contracts —  Ultra  Vires  as  a  defence. 

2.  Liability  on  Implied  Contracts,  generally. 

3.  For  Illegal  Taxes,  etc,  compulsorily  collected. 

Actions  for  Torts.     Sees.  752-802. 

4.  No  liability  in  respect  to  the  exercise  of  discretionary  or  legislative 

powers. 

5.  Nor  for  imperfect  execution  of  by-laws. 

6.  Nor  for  misconstruing  extent  of  public  powers. 

7.  Nor,  without  a  statute  creating  it,  for  buildings  demolished  to  pre- 

vent fire. 

8.  Nor  for  property  destroyed  by  mobs. 

9.  Implied  liability  for  neglect  of  corporate  duty. 

10.  Distinction  in  this  respect  between  quasi  corporations  and  municipal. 

11.  Liability  for  torts  of  officers  and  agents. 

12.  Not  liable  for  acts  ultra  vires — illustrations. 

13.  But  liable  for  authorized  torts  not  ultra  vires. 

14.  Respondeat  Superior,  when  applicable. 

15.  Respondeat  Superior :     Who  are,  and  who  are  not,  corporate  officers. 

16.  Liability  for  neglect  of  corporate  duty. 

17.  Liability  in  capacity  of  property  owner. 

18.  No  liability  for  acts  authorized  by  charter  or  statute. 

19.  Streets:     May  grade  and  change  grade  of  streets. 

20.  Streets  :     Remedy  therefor,  if  given,  must  be  followed. 

21.  Streets:     Liability  for  unsafe  street  and  sidewalks. 

22.  Defective  Highways:     New  England  statutes  and  decisions  on  this 

subject. 

23.  Streets  :    General  liability  of  municipal  corporations  proper  for  unsafe 

streets. 

24.  Streets  :  Liability  of  author  of  defect  or  obstruction. 

25.  Streets :  Defects  caused  by  railroads. 

26.  Streets :  Liability  as  to  water  courses  and  surface  water. 

27.  Streets :  Drains  and  Sewers — liability  in  respect  to.     Sees.  749-802. 


TABLE    OF    CASES    CITED. 


[the  references  are  to  the  sections.] 


A. 


Abbott  v.  Herman  386 

v.  Mills        496,  499,  507,  521 

v.  Yost  176 

Abby  v.  Billups  130,  374 

Aberdeen  v.  Saunderson  35,  47 

Abernethy  v.  Dennis  529 

Achison  v.  Barlow  24 

v.  Bartholew  24a 

v.  Butcher  46,  106,  420 

v.  Twine  760 

Achley's  Case  148,  151,  210 

Adams  v.  Beale  660 

v.  Carlisle  777,  788 

v.  Farnsworth  383 

v.  Hill  221 

v.  Mack  241 

v.  Mayor      253,  263,  297,  611 

v.  Newfane  476 

v.  Railroad  Co. 

426,  448,  469,  562 

v.  Rivers  544 

v.  Walker  799 

v.  Whittlessey  176 

Adley  v.  Reeves      279,  287,  341,  342 

Adriance  v.  New  York  735 

Adsit  v.  Brady  176 

African  Soc.  v.  Varick  121,  123 

Aiken  v.  Railroad  Co.  80 

Albany,  Ex  parte  61 

v.  Cunliff  381,  767 

Albany  St.,  Matter  of      458,  459,  463 

Albright  v.  Town  Council  371 

Alcorn  v.  Horner  23,  596 

v.  Philadelphia  772,  775 

Alden  v.  Pinney  522 

v.  Rounsville  129 

Aldermen  v.  Finley  50 

Aldrich  v.  Howard  308,  312,  338 

v.  Londonderry  750 

v.  Pelham  768 

Alexander  v.  Baltimore   467,  476. 481 

482,  590,  496   728 

v.  Heller  654 

v.  Hoyt  176 


Alexander  v.  McDowell  696 

v.  Milwaukee         781,  783 
v.  Railroad  Co.  67 

Alexandria  v.  Alexandria  54 

Alger  v.  Lowell  788,  789 

Allegheny  v.  Railroad  Co.       541,  560 
Allegheny  City  v.  McClurken 

381,  406 
Allegheny  City's  Appeal  659 

Allegheny  County  v.  Van  Campen 

155 

v.  Shaw  763 

Allen  v.  Cooper  221,  386 

v.  Decatur  769 

v.  Drew  596 

v.  Jay  1056,  460,  465,  587 

v.  McKean  30,  174 

v.  Taunton  13,  94 

v.  Turner  735 

Allentown  v.  Seager  751 

Allison  v.  Juniata  County      410,  414 

All  Saints  Church  v.  Lovett  117 

Altemus  v.  Mayor  392 

Alton  v.  Illinois  Transfer  Co.         433 

v.  Madison  County  750 

v.  Mulledy  374,  383 

v.  Transportation  Co. 

508,  511,  512,  532 
Alvey  v.  Henderson  445,  512,  529 
Alvord  v.  Ashley  491 

v.  Barrett  176 

Amboy  v.  Sleeper  302 

Ambrose  v.  State  302 

Amelung  v.  Seekamp  522 

American  Bible  Soc.  v.  Marshall  436 
American  Ins.  Co.  v.  Oakley  383 

American  Print  Works  v.  Lawrence 

176,  756 
American,  &c,  Co.  v.  Buffalo  613 
Ames  v.  County  93 

Amesbury  v.  Insurance  Co.  354 

Amey  v.  Allegheny  City 

90,  104,  106,  265,  269,  407,  426,  610 
Amrine  v.  K.  P.  R.  R.  Co.  738 

Amy  v.  Supervisors 

176,  G66,  691,  693,  802 


10 


TABLE     OF     CASES     CITED. 


Anderson  v.  Draining  Co.  463 

v.  St.  Louis     469,  476,  738 


Attorney  General  v.  Earl  Clarendon 

193 


v.  State  735,  761 

Andover  v.  Gould  543,  784 

v.  Grafton  13,  379 

v.  Sutton  579 

Andrews  v.  Insurance  Co.  251 

v.  United  States       169,  172 

Annapolis  v.  Harwood  606,  656 

v.  State  28 

Anonymous  239 

Anthony  v.  Adams  13,  766,  768 

v.  Cleveland  381 

v.  Halderman  141 

v.  Inhabitants  412 

Anthony  Street,  Matter  of 

473,  474,  487 
Antones  v.  Eslava  492,  495,  510 

Appleby  v.  Mayor  381,  388 

Applegate  v.  Ernst  629 

Arbegust  v.  Louisville  633 

Argenti  v.  San  Francisco  55,  373,  383, 
384,  392,  402,  413,  481,  599 
Arkwright  v.  Cantrell  165 

Armington  v.  Barnet  454 

Armstrong  v.  Commissioners  30 

v.  Dalton  529 

Armstrong  County  v.  Clarion  County 

750 

Arnault  v.  New  Orleans  28,  126 

Arnold  v.  Bridge  Co.  460,  488 

v.  Cambridge  638,  738 

v.  Shields  476,  744 

Arnot  v.  McClure  470 

Arrowsmith  v.  New  Orleans  503 

Asbrook  v.  Commonwealth       95,  308 

Ash  v.  People  79,291,292,313,318,319 

Ashley  v.  Reynolds  751 

Ashton  v.  Ellsworth  245,  275 

Ashville  v.  Means  337,  605,  606 

Aspinwall  v.  Knox  County  425 

v.  Jo  Daviess  County 

42,  105,  106,  420,  426,  608 

Assessors  v.  Commissioners  107 

Atchison  v.  Challiss  799,  801 

v.  King  788,  789,  790 


Athearn  v.  District 

Atkins  v.  Barlow 

Atkinson  v.  Railroad  Co. 

Atlanta  v.  White 

Attorney  General  v.  Aspinwall 

141,  368, 

v. 

v. 

V. 


238 

24 

24a 

313 


730 
730 
730 


Birmingham 

Brown 

Detroit 

389,  390,  7306 
Dublin 

729,  730   735 


v.  Exeter  730 

v.  Gas  Co.  312 

v.  Gooderich  515 
v.  Gower  113 

v.  Heelis  729.  730 
v.  Heishon  520,  521 
v.  Insurance  Co.  407 
v.  Kerr  118 

v.  Lathrop  387 

v.  Leicester 

118,  730 
v.  Litchfield 

82,  141,  730 
v.  Liverpool  730 
v.  Lock  62 

v.  Mayor  399 

v.  Nepeau  Road  Co. 
523 
v.  New  York         61 
v.  Norwich  730 

v.  Patterson  727 
v.  Peterson  476 

v.  Plank  Road  Co. 

622 
v.  Plymouth 

728,  730 
v.  Poole 

141,  368,  370 
v.  Railroad  Co.  560 
v.  Rye  122 

v.  Salem 

720,  721,  735 
v.  Shrewsbury 

109,  437,  442 
v.  Utica  Ins.  Co.  713 
v.  Wigan  730 

v.  Wilson 

118,  728,  730 

v.  Worcester       118 

Atwater  v.  Baltimore  773 

Auditor  v.  Davies  14 

Augusta  v.  Leadbetter  13,  398 

v.  Perkins 

508,  512,  445,  503,  515 

v.  Railroad  Company        629 

v.  Sweeny  170 

Augusta  Bank  v.  Augusta  104 

Aull  v.  Lexington  305 

Aurora  v.  Gillett  799 

v.  Puffer  788,  799 

v.  Reed  543,  799 

v.  West  30,  66,  104,  106,  405, 

420,  422,  423 

Austin  v.  Murray 

93,  261,  306,  326,  354 


TABLE     OF     CASES     CITED. 


11 


B. 


[Baltimore  v.  Hefferman 


'751 


Bab  v.  Clerke  287 

Babbitt  v.  Savoy  98 

Bacher's  Case  191 

Backman  v.  Charlestown         382,  385 
Bacon  v.  Boston  585,  786,  789 

v.  Robertson 

109,  110,  113,  114 
Bagg  v.  Detroit  574,  596,  735 

Bagg's  Case 

178,  180,  188,  190,  192.  193 
Bagot's  Case  21 

Bailey,  Ex  parte  669 

v.  New  York 

39.  176,  760,  764.  779,  780 
v.  Railroad  Co.  '  518,  527 

Bailey  ville  v.  Lowell  398 

Bainbridge  v.  Sherlock  72 

Baird  v.  Bank  444 

v.  Rice    491,  508,  509,  518,  527 
Baker  v.  Boston 

58,  59,  93,  326,  766,  777 
v.  Chanibles  376 

v.  Cincinnati  593,  751 

v.  Commonwealth  521 

v.  Johnson  County 

374,  405,  412 

v.  Johnston  491,  494,  495,  503, 

504,  505,  507,  508,  529,  667,  668 

v.  Pittsburg  170 

v.  Portland  245,  789 

v.  Savage  535,  788 

v.  State  176 

v.  St.  Paul  491 

v.  Utica  169,  402 

v.  Windham  98,  235 

v.  Young  199 

Balch  v.  Commissioners  470 

Baldwin  v.  Bangor  476 

v.  Buffalo  495 

v.  Calkins  740 

Baldwin  County  v.  Liquor  Dealers 

297 

Ball  v.  Armstrong  583,  794 

v.  Brigham  739 

v.  Winchester  762 

Ballard  v.  Davis  221 

Baltimore  v.  Board  of  Police 

24,  30,  34,  406,  608 
v.  Bouldin  471,  642 

r.  Brannan  789 

v.  Cemetery  Co.  616 

v.  Chase  655,  656 

v.  Clunet 

246,  353,  458,  476 
v.  Eschbach 

872,  470,  639,  766,  768 
v.  Gill      58,  85.  733,  736a 


v.  Horn  45,  458,  729,  736a 
v.  Marriott  669,  788,  789 
v.  Pennington 

789,  790,  791 
v.  Porter         45,  687,  689, 
729,  736a,  737,  738 
v.  Poultney 

197,  221,  383,  760 
v.  Railroad  Co. 

147,  629,  727,  729 
v.  Reynolds 

372,  373,  382,  386 

v.  Root  65 

v.  Turnpike  221 

v.  White  67,69,71,73,74,76 

Banbury's  Case  109,  159 

Bancroft  v.  Lynnfield  13,  98 

Baldwin  v.  Green  537 

Banett  v.  Henderson  693 

Bangor  v.  Lansil  799 

Bangs  v.  Snow  55 

Bank  v.  Bridges  54 

v.  Brown  23 

v.  Chilicothe  55,  82,  407 

v.  City  Council  629 

v.  Dand ridge 

152,  153,  237,  373,  383 


v.  Davis 
v.  Dubuque 
v.  Earle 
v.  Farmington 
v.  Gottschalk 
v.  Hamlin 
v.  Hart 
v.  Hines 
v.  Knoop 
v.  Lockwood 


54 
448,  450 

436 
406,  407 

376 
241,  335 

242 

593 
30 

114 


v.  Mayor         629,  770,  771,  777 
v.  Navigation  Co.  405 

v.  New  Orleans  751 

v.  Niles  433,  444 

v.  Patterson     132,  371,  376.  377. 
380,  383,  385,  407 
v.  Petway  159 

v.  Railroad  Co.  130,  405 

v.  Seton  226 

v.  Smedes  372 

v.  Supervisors  98,  737 

v.  Town  Council  629 

v.  United  States  248 

v.  Wiste,r  132 

Bank  of  Ireland  v.  Evans  130 

Bank  of  Rome  v.  Rome 

23,  27,  104,  106,  407,  423 

Bankhead  v.  Brown  464,  465 

Banks  v.  Ogden  491 

v.  Poiteaux  444 


12 


TABLE     OF     CASES     CITED. 


Banton  v.  Wilson  682 

Barber  v.  Essex  795 

v.  Roxbury  788,  789 

Barber  Surgeons  v.  Pelson  346 

Barclay  v.  Howell  494,  496,  498,  499, 

501,  503,  504.  515,  520,  527,  544 

Bardwell  v.  Jamaica  579 

Barett  v.  New  Orleans  433 

Barker  v.  Loomis  82 

v.  State  634 

Barlett  v.  Crosier  176,  579 

Barling  v.  West  258 

Barnes  v.  Atchison  605 

v.  Barnes  51 

v.  Beloit  737 

v.  Pennell  176 

Barnett  v.  Newark  265 

v.  Jefferson  County  129 

Barney  v.  Bush  176 

Barnwell  v.  McGrath  529 

Baron  v.  Baltimore  74,  454,  797 

Barr  v.  Deniston  734,  737 

Barre  v.  Greenwich  134 

Barrett  v.  Brooks  9,  535,  536 

v.  Henderson  621 

v.  Schuyler  County  405 

Barry  v.  Lowell       777,  779,  801,  802 

v.  Merchants  Exp.  Co.    82,  407 

v.  St.  Louis  791 

Barter  v.  Commonwealth       272,  302, 

343,  358,  361,  366,  530,  541,  544 

Bartho  v.  Salter  173 

Bartlett  v.  Amherstburg  384 

v.  Crozier  691 

Barto  v.  Himrod  23,  104 

Barton  v.  Montpelier  788 

v.  New  Orleans  169,  305 

v.  Syracuse  790,  802 

Bass  v.  Columbus  424 

v.  Fontleroy  34,  47 

Bassett  v.  Barber  685 

v.  Porter  51 

Bateman  v.  Mayor  371,  372 

v.  Megowan  141,  368 

v.  Mid  Wales  R.  Co. 

81,  82,  393,  407 
Bates  v.  Mobile  626,  630 

v.  Plymouth  239,  684,  695 

Bath  v.  County  Commissioners       235 
Baton  Rouge  v.  Deering  357 

Battle  v.  Mobile  590,  626 

Batty  v.  Duxbury  795 

Baumgard  v.  Mayor  777 

Baxter  v.  Commonwealth        279,  287 
v.  Winooki  Turnpike  Co    786 
Bayergue  v.  San  Francisco  413 

Beach  v.  Frankenberger  795 

Beach  v.  Haynes  433,  436,  445 


Beachy  v.  Lamkin  703,  712 

Beals  v.  Amador  County  599 

Bean  v.  Jay  398 

v.  Tompson  176 

Bearce  v.  Fossett  204 

Beard  v.  Brooklyn  400,  402 

Beardslee  v.  French  530 

Beardsley  v.  Smith  445, 686,762, 791,794 

Beatty  v.  Gilmore  521,  789 

v.  Knowles  50,  605 

v.  Kurtz  494,  510 

Beaufort  v.  Duncan  433,  451 

Beaver  Dam  v.  Frings  433 

Bechtel  v.  Carslake  522 

Beck  v.  Hanscom  159,  222 

Beecher  v.  Bridge  Co.  789 

Beekman  v.  Railroad  Co.  480,  483 

Beekman  Street,  Matter  of  306 

Beers  v.  Arkansas  14 

v.  Beers  367,  482 

v.  Botsford  762 

v.  Phoenix  Glass  Co.  82 

Beesman  v.  Peoria  357 

Belcher  v.  Farrer  305 

Belknap  v.  Rheinhart  176 

Bell,  Re  98 

v.  Foutch                  535,  536,  580 

v.  Gough  433 

v.  Railroad  Co.  514 

Bell  County  v.  Alexander  437,  442 

Belleville  v.  Stokey  491 

Bellows  v.  Bank  116 

Beloit  v.  Morgan  405,  424 

Bemis  v.  Beckel  126 

Beubow  v.  Iowa  City  686 

Benedict  v.  Denton  131 

v.  Goit  783 

Benjamin  v.Wheeler  58,  781,  783,  784 

Bennefield  v.  Hines  297 

Bennett  v.  Birmingham   291,  604,  631 

v.  Buffalo           660,  751,  771 

v.  Fisher  458 

v.  New  Orleans 

753,  772,  781,  799 

v.  People  297 

Bennington  v.  Smith  537 

Benoist  v.  Carondolet  132 

v.  St.  Louis  610,  634 

Benoit  v.  Conway  57,  83 

v.  Wayne  County  174 

Benson  v.  Albany  27 

v.  Carmel  410 

v.  Mayor  80,  423 

Benton  v.  Jackson  22 

Benton  Street  Case  594 

Bentz  v    Armstrong  799 

Bergen  v.  Clarkson 

92,  224,  279,  287,  433,  656 


TABLE     OF     CASES     CITED. 


13 


Berks  Co.  v.  Myers  123 

Berlin  v.  Gorham  23 

Berliner  v.  Waterloo  124 

Berryman  v.  Wise  176 

Bestor  v.  Powers  132 

Bethune  v.  Hughes  313,  319 

v.  Turner  511 

Betts  v.  Williamsburg  481 

Beurojohn  v.  Mayor  307 

Beygen  v.  Chicago  652 

Bibb  County  v.  Railroad  Co.  629 

Biddle  v.  Shippen  491 

v.  Willard  161,  671 

Bietry  v.  New  Orleans  403 

Bigelow  v.  Hillman  228,  249 

v.  Louisville  389,  764 

v.  Perth  Amboy        237,  397 

v.  Railroad  Co.  470,  487 

v.  Randolph  763 

v.  Weston  789 

Bills  v.  Kinson  101 

Bird  v.  Wasco  County  168 

Birmingham  v.  Anderson  499 

Bischer  v.  Richards  579 

Bishop  v.  Cone  232 

v.  Macon  757 

Bissell  v.  Jeffersonville  46,  227, 

236,  416,  418,  420,  423,  424,  425 

v.  Railroad  Co. 

382,  496,  524,  557 

Black,  Ex  parte  672 

v.  Railroad  Co.  555,  558 

Blackburn  v.  Walpole  206 

Blackerby  v.  People  712 

Blackett  v.  Blizard  199 

Blackstone  v.  Taft  128 

v.  White  51 

Bladen  v.  Philadelphia     87,  169,  373 

Blagrave's  Case  192 

Blair  v.  Forehand  101 

Blaisdell  v.  Portland  789 

Blake  v.  Ferris  791,  792 

v.  Railroad  Co.  114 

v.  St.  Louis  789,791 

v.  Sturdevant  176 

Blanc  v.  Mayor  621 

Blanchard  v.  Bissell        126,  244,  265 

v.  Blackstone  376 

v.  Porter  74 

Blanding  v.  Burr 

23,  30,  44,  590,  596.  608 
Bleeker  v.  Ballou  616 

Bleu  v.  Bear  River  Co.  385 

Bliss  v.  Ball  496,  524,  544 

v.  Brooklyn  764 

v.  Kraus  596 

Blyth  v.  Birmingham  Water  Works 

551 


Block  v.  Jacksonville  268,  299 

Blodgett  v.  Boston  464,  786 

v.  Royalston  505 

Bloodgood  v.  Mohawk,  &c,  R.  R.  Co. 

105Z>,  458,  463,  467,  480 

Bloomington  v.  Bay  789,  790 

v.  Wahl  319 

Board  v.  Edson  512,  515 

v.  Grant  685,  707 

v.  Municipality  31 

v.  Pooley  289 

v.  Strader  579 

Boardman  v.  Hayne  176 

Bob  v.  State  739 

Bodman  v.  American  Tract  Soc.    122 

Bodwic  v.  Fennell  341,  349 

Bogart  v.  Mayor  743 

Bogert  v.  Indianapolis  306,  307 

Boggs  v.  Hamilton  176 

Boileau's  Case  136 

Boiling  v.  Petersburg      445,  524,  526 

Bolte  v.  New  Orleans  273 

Bolton  v.  Crowther  176 

Bond  v.  Hiestand  54,  655 

v.  Kenosha  616,  617,  738 

v.  Newark  401,  648,  727 

Bonesteel  v.  Mayor         375,  388,  403 

Bonner  v.  State  680 

Boom  v.  Utica  308,  381,  768 

Booth  v.  State  338 

v.  Woodbury  103 

Boren  v.  Commissioners  669 

Boring  v.  Williams  366 

Borough  v.  Shorts  596,  644 

Borough  of  Little  Meadows  126 

Borough  of  Tintagel  680 

Boston  v.  Lecraw  73,  498 

v.  Monroe  751 

v.  Richardson 

496,  524,  544,  546,  568 
v.  Shaffer 

241,  291,  293,  294,  606 

v.  Shaw  261, 543,  637,  645,  784 

v.  Worthington  795 

Boston  Glass  Manuf.  v.  Langdon  109 

Boston  Mill  Corp.  v.  Newman        464 

Boston  Turnpike  v.  Pomfret 

232,  233,  236 
Boston  Water  Power  Co.  v.  Boston 

751 
Boston,  &c,  Glass  Co.  v.  Boston  751 
Bosworth  v.  Budgen  356 

Bouldin  v.  Baltimore  610,  639 

Bouton  v.  Brooklyn  506 

Bow  v.  Allentown  9,  22,  51,  431 

Bowdoinham  v.  Richmond  129 

Bowen  v.  Morris  378 

v.  Team  529,  531 


14 


TABLE     OF     CASES     CITED. 


Bower  v.  State  Bank 

Bowerbank  v.  Morris 

Bowliu  v.  Furman 

Bowlsby  v.  Spear 

Bowman  v.  Boston  505, 

v.  St.  John 
Boyce  v.  Russell  667, 

Boyden  v.  Brookline 
Boyer  v.  state 

Boyland  v.  Mayor  881, 

Boyter  v.  Dodsworth 
Bozant  v.  Campbell  256, 

Bradford  v.  Chicago 
Bradley  v.  Ballard 

v.  McAtee  590, 

v.  Richmond 
Bradshaw  v.  Omaha  633, 

Brady  v.  Insurance  Co. 

v.  Mayor  381,  385, 

v.  Supervisors 
Brailey  v.  Southborough 
Brainard  v.  Railroad  Co. 
Braintree  v.  Battles 
Brander  v.  Judges 
Branham  v.  San  Jose 

372,  448,  512, 
Brashear  v.  Mason 
Bray  v.  Wallingford  65, 

Brevoort  v.  Detroit  388, 

Brewer  v.  New  Gloucester 
Brewster  v.  Harwich 
v.  Hyde 
v.  Newark 

v.  Syracuse        44,  588, 
Brick  Church,  Matter  of 
Bridge  v.  Gage 

v.  Lincoln 
Bridge  Co.  v.  Clarksville 
v.  Dubuque 

594,  613, 
v.  Lowell 
Bridgeport  v.  Railroad  Co. 

46,  55,  58,  104,  106,  372,  382, 
Bridges  v.  Griffin 
Briggs  v.  Boat 

v.  Murdock 

v.  Whipple  50,  98 

Bright  v.  Hewes 

v.  Supervisors 
Brightmau  v.  Kirner  594, 

Brimmer  v.  Boston 
Brine  v.  Railroad  Co. 

781,  799,  800, 
Brinkmeyer  v.  Evansville  772, 
Briscoe  v.  Bank 

v.  Drought 
Bristol  v.  New  Chester  23, 

Briton  v.  New  York 


121 
174 
445 
800 
789 
275 
668 
169 
501 
768 
174 
305 
757 
749 
596 

65 
634 
338 
387 
399 
786 
560 

51 
673 

526 
670 
762 
652 
762 
129 
204 
642 
596 
306 
91 
177 
454 

629 
454 

616 
629 
324 
204 
,  99 
399 
172 
616 
61 


Brittain  v.  Newland  123 

Britton  v.  Cummington  786 

v.  Philadelphia  650 

v.  Platte  City  686,  689 

Broadhead  v.  Milwaukee  103 

Broadnac's  Case  346 

Brocas  v.  London  241 

Brodnax  v.  Groom  28,  737 

Bronson  v.  Kinsie  41 

Brookline  v.  Westminster  124 

Brooklyn  v.  City  R.  R.  Co. 

61,  557,  567,  570,  572,  791 
v.  Cleves  319 

v.  Patchcn  482 

v.  Tonybee  302 

BrooK.yn  Park  Commissioners  v.  Arm- 
strong 456,458,462,465,510,512,513 


790 
23,  51 
735,  780 
480 
685 
569 

65 
338 
110 
389 

41 
783 


543, 


Brooks  v.  Somerville 
Brower  v.  Appleby 

v.  New  York 
Brown  v.  Beatty 
v.  Crego 
v.  Duplessis 
v.  Heath 
v.  Hunn 
v.  Insurance  Co. 
v.  Jefferson  County, 
v.  London 
v.  Lowell 
v.  Manning 

491,  498, 507,  515,  522,  735 
Maryland  591,  630 

Rundlett  176 

Sarnia  799,  800 

Smith  144 

Utica  412 

Browning  v.  Railroad  Co.  476 

v.  Springfield  785,  789 

Bruce  v.  Bruce  134 

Brunette  v.  Mayor  295 

Brunswick  v.  Litchfield  43 

Bryan  v.  Bates  149,  347 

v.  Cattell 

166,  167,  168,  663,  671,  695 


v. 
v. 

V. 

V. 
V. 


Bryant  v.  McCandless  443,  494 

Bryson  v.  Philadelphia  61 

Buchanan  v.  Curtis  499 

Buck  v.  Lockport  686 

Buckbee  v.  Brown  77 

Buckner,  Ex  parte  740 

v.  Augusta  512 

Buckwall  v.  Story  606,  658 

802lBuell  v.  Ball  248,  634 
773            v.  Buckingham  199,216,217, 22 1 

14  Buffalo  v.  Halloway  401,  791 


797 

127 

61 


Le  Couteulx  613 

Webster 

261,  289,  290,  313,  319 


TABLE     OF     CASES     CITED. 


15 


Buffette  v.  Railroad  Co 
Bulkley  v.  Eckert 
Bull  v.  Read 
v.  Sims 
Bullock  v.  Curry 

v.  Geomble 
Bulow  v.  City  Council 
Bunnell's  Appeal 
Burden  v.  Stein 
Burditt  v.  Swenson 
Burgess  v.  Jefferson 

v.  Pue 
Burke  v.  Elliott 
v.  Jeffries 


749 

65 

28,  590,  737 

406,  408,  413 

435 

284 

629 

522 

462 

308 

389 

176,  224,  590 

716 

20 


Butz  v.  Muscatine      41,  89,  107,  114, 

416,  416Z>,  426,  608,  610,  685,  689 

Byers  v.  Commonwealth  334,  344,  361 


Olney 
Trustees 


C. 


Cabot  v.  Britt 

Cadden  v.  Eastwick 

Cady  v.  Watertown 

Cah ill  v.  Insurance  Co. 

Calais  v.  Dyer 

Calaveras  County  v.  Brockway 


297 
299 


235 
272 
374 
51 
579 
666 


Burkholter  v.  McConnellsville        297  Caldwell  v.  Alton      55,  313,  315,  319 


Burlington  v.  Gilbert  639,  783 

v.  Kellar  287,  297 

Burnes  v.  Atchison 

18,  23,  106,  107,606,  610,  735 
Burnett,  Ex  parte 

55,  287,  288,  299,  337 

v.  Auditor  685 

v.  Buffalo  469,  605 

v.  Sacramento  599,  639 

Burnham  v.  Boston  788 

v.  Chicago  635 

v.  Fond  du  Lac  65 

v.  Sacramento         599,  639 

Bums  v.  Clarion  County  30,  44 

v.  La  Grange  357,  365,  740 

v.  Railroad  Co.  458 

Burrill  v.  Boston 

13,  376,  378,  381,  384,  385 


Co. 


716, 


Burr's  Trial 

Burt  v.  Merchants'  Ins 

Burton  v.  Patten 

v.  Railroad  Co. 
Bush  v.  Beavan 
v.  Johnston 
v.  Seabury 
v.  Shipman 
v.  Whitney 
Bushnell  v.  Beloit 

v.  Insurance  Co. 
Bussier  v.  Pray 
Butchers'  Co.  v.  Bullock 

v.  Mercy 
Butler  v.  Charlestown 
v.  Chicago 
v.  Dunham 
v.  Milwaukee 
v.  Muscatine 
v.  Pennsylvania 
v.  Toledo 
Butman  v.  Fowler 
Butolph  v.  Blust 
Buttrick  v.  Lowell 

39,  93,  149,  385,  399,  760,  772,  773 


184 
462 
723 
572 
667 

500,  794 

319 

30,  34 

449,  450 
40 
17 

172,  173 

275,  349 
288 
57,  379 
642 
104,  420,  424 
399 
634 
168 
652 
537 
347 


v.  Harrison  221 

v.  Justices    9,  104,  106,  590 
Calkins  v.  Baldwin  176 

Callaghan  v.  Hallett  173 

Callenderv.  Marsh 

543,  781,  783,  784 
Cambridge  v.  Railroad  Co. 

574,  746,  747 
Cambridge  University  v.  Crofts  123 
Camden  v.  Allen  653,  656 

v.  Mulford 

476,  639,  740,   741 
Campan  v.  Detroit  476,  482,  483 

Campbell  v.  Kenosha 

28,  41,  387,  416,  424 
v.  Polk  County 

406,  408,  410,  413 
v.  Race  788 

Canaan  v.  Derush  383 

Canal  Bank  v.  Supervisors 

82,  407,  409,  412 

Canal  Co.  v.  Graham       785,  789,  790 

v.  Hall  498 

v.  Railroad  Co.  54,109,296 

v.  State  579 

v.  Swann  398 

Canal  Street,  Matter  of  368,  474 

Canal  Trustees  v.  Haven        494,  525 

v.  People  684 

Canton  v.  Nist  263 

Cardigan  v.  Page  204 

Carleton  v.  Bath  13 

v.  Iron  Co.  778 

v.  People  214 

Carlton  v.  Salem  730,  735 

Carne  v.  Brigham  407 

Carondolet  v.  McPherson  514 

Carpenter  v.  Ely  676 

v.  Lothrop  418,  423 

v.  Railroad  Co.       524,  557 

Carpenter's  Case  136,  699 

Carr  v.  Northern  Liberties 

62,  752,  783,  799,  801 


16 


TABLE  OF  CASES  CITED. 


Can  v.  St.  Louis 

Carrol  v.  Board  of  Police 

412,  685,  761 

Carroll  v.  Mayor  291,  740 

v.  St.  Louig  172.  399 

v.  Tuscaloosa  291,  632 

v.  Tyler  173 

Carrolton  R.  R.  Co.  v.  Winthrop  433 

Carron  v.  Martin      639,  727,  740,  741 

v.  Railroad  Co.  526 

Carter  v.  Bridge  Proprietors      43,  44 

v.  Dow  292,  294,  594 

v.  Harrison  176 

Case  v.  Hall  335 

v.  Mobile  50,  346,  348 

Cass  v.  Bellows  232 

v.  Dillon  90,  104 

Castleton  v.  Langdon  433,  436 

Catholic  Soc.  v.  New  Orleans        751 

Caulfield  v.  State  151 

Caverly  v.  Lowell  171 

Central  Bridge  Corp.  v.  Lowell      208 

Central  Park,  Matter  of  462 

Centralia  v.  Krouse  789,  790 

Chad  v.  Tilsed  56 

Chadbourne  v.  Newcastle  760 

Chaffee  v.  Granger  371,  735 

Chaboon's  Case  357 

Chamberlain  v.  Burlington    106,  393 

v.  Dover 

205,  207,  232,  235 

v.  Sibley 

Chambers  v.  St.  Louis      47,  429,  432, 

433,  435,  436,  437,  441,  444 

v.  Satterlee  599,  783 

Chance  v.  Temple  698,  699,  712 

Chancellor  of  Oxford's  Case  121,  122 

Chandler  v.  Boston  126,  127 

v.  Bradish  158 

Chapin  v.  Osborn  668 

v.  Railroad  Co.  405 

v.  School  District       122,  443 

Chaplin  v.  Hill  386 

Chapman  v.  Brooklyn  596 

v.  Gordon  510,  522 

v.  Lowell  403 

v.  Miller  67 

Charity  Hospital  v.  Stickney  291,  594 

Charles  v.  Hoboken  191,  221 

Charles  River  Bridge  v.  Warren  Bridge 

78,  784 
Charleston  v.  Chur  346,  355 

Charlton  v.  Allegheny  City  783 

Chase  v.  Lowell  '51,  171 

v.  Merrimac  Bank  762 

Chaslain  v.  Town  Council  297 

Chatfield  v.  Wilson  781 

Chattanooga  v.  State  746 


170,  253  Chaunt  v.  Smart  710 

Cheany  v.  Hooser  126,  633,  760 

Cheatham  v.  Shearn  308 

Cheenery  v.  Waltham  125 

Chegary  v.  Jenkins  176 

Chemung  Canal  Bank  v.  Supervisors 

372 

Cheney  v.  Shelbyville  291 

Chess  v.  Birmingham  604 

Chestnut  Ave.  638 

Chicago  v.  Colby  616 

v.  Evans  245,  519,  714 

v.  Gallagher  788,  789 

v.  Halsey  446 

v.  Johnson  789,  790. 

v.  Langlass  789 

v.  Larned  481,  603,  616 

v.  McGuin  579 

v.  Major  790 

v.  Martin  789 

v.  People  400,  401,  414,  652 

v.  Powers  579,  580 

v.  Quimby  278,  323 

v.  Bobbins        555,  557,  772, 

789,  790,  791,  792,  794,  795 

v.  Sheldon  416A 

v.  Starr  790 

v.  Ward  652 

v.  Wheeler  472 

v.  Wright  605,  606,  610,  658 

Child  v.  Boston  772,  801,  802 

v.  Hudson's  Bay  Co.  250 

Childress  v.  Mayor  310 

Chilton  v.  Railroad  Co.  287 

Chilvers  v.  People  79,  80,  292 

Chisey  v.  Canton  763,  786 

Choquette  v.  Barada  450 

Christopher  v.  Mayor  385,  735 

Church  v.  Baltimore 

59,  252,  471,  476,  482 
v.  Cherryfield  788 

v.  Hoboken 

495,  503,  509,  512,  520,  523 
v.  McAtee  596,  616 

v.  New  York 

245,  249,  306,  616 

v.  Railroad  Co.  519 

v.  Scholtze  510 

v.  Woodward  204 

Church  Case  215 

Cincinnati  v.  Bryson        291,  292,  606 

v.  Buckingham 

283,  292,  313,  606 
v.  Combs  469,  471 

v.  Commissioners  491 

v.  Evans  529 

v.  G wynne 

58,  244,  263,  366 


TABLE     OF     CASES    CITED. 


17 


Cincinnati  v.  Hamilton  County      499 

v.  Morgan  418 

v.  Penny        544,  545,  783 

v.  Rice  330 

v.  Stone         790,  792,  793 

v.  Walls  74 

v.  White        491,  493,  494, 

499,  501,  507,  524,  544 

Cisco  v.  Roberts  67 

City  v.  Alexander  104 

v.  Burgen  640 

v.  Clutch  291 

v.  Ferry  Co.  80 

v.  Given  158,  174 

v.  Lawson  28,  41, 

82,  405,  412,  416,  4166,  424 

v.  Wistor  640 

City  Council  v.  Ahrens 

253,  260,  291,  299,  591 
v.  Benjamin  253,  330 
v.  Boyd  305 

v.  Church 

106,  260,  299,  306,  613 
v.  Condy  613 

v.  Corlies  350 

v.  Dunn  350 

v.  Elford  338 

v.  Fechman  350 

t.  Gilmer 

781,  799,  801,  802 
v.  Goldsmith 

253,  295,  322 
v.  King  289,  360 

v.  Moorehead  130 

v.  Payne  93,  149 

v.  Pepper  289,  293,  360 
v.  Pinckney  618,  744 
v.  Plank  Road 

55,  329,  330,  372,  382 

v.  Seeba  347 

v.  Smidt  350 

City  Fire  Ins.  Co.  v.  Corlies  757 

City  Gas  Co.  v.  Thurber  628 

Claflin  v.  Hopkinton  100,  732 

v.  Iowa  City  65 

Clague  v.  New  Orleans  773 

Claibourne,  Matter  of      468,  469,  473 

Clapp  v.  Cedar  County  405 

v.  Hartford      50,  471,  596,  677 

v.  Walker  65 

Clark  v.  City  104 

v.  Corinth  788 

v.  Cuckfield  Union  380 

v.  Davenport   55,  107,  610,  689 

v.  Des  Moines       106,  381,  393, 

405,  406,  407,  411,  412,  414, 

419,  536,  580 

v.  Dutcher  751 


Clark  v.  Fry 

v.  Halleck 
v.  Janesville 
v.  Lewis 
v.  McCarthy 
v.  Mayor 
v.  Norton 
v.  People 
v.  Polk  County 


581,  793 
176 

82,  90,  265,  405 

101,  284 

538,  539 

308,  403,  728 

176 

183,  717 

381,  406,  411 


v.  Potter  County  123 

v.  Pratt  450 

v.  School  Commissioners 

65,  406,  407 

v.  Syracuse  308,  312 

v.  Tuckett  354 

v.  Utica  484 

v.  Washington  60,  374 

v.  Wilmington  800 

Clark's  Case  136,  190,  287 

Clarke  v.  Bank  50 

v.  Blackmar  557,  558 

v.  Tanners,  &c.  Co.  132 

v.  Newport  473 

v.  Rochester 

19,  23,  27,  104,  109 
Clason  v.  Milwaukee 

253,  259,  261,  371 

Clay  v.  County  108,  423 

Clayburg  v.  Chicago  778 

Clayton  v.  Heidelburg  744,  745 

Cleino  v.  Railroad  Co.  616 

Clemens  v.  Anderson  529 

Clemsford  County  v.  Demorest      155 

Clerke  v.  Tucker  287,  656 

Cleveland  v.  Gas  Light  Co.  308 

v.  St.  Paul  790 

v.  Wick  481,  596 

Clifton  v.  Cook  136 

Clinton  v.  Railroad  Co.  43,  496,  518, 

519,  555,  556,  559,  560,  562,  570,  574 

Clintonville  v.  Keeting  54,  299 

Clough  v.  Hart  399 

v.  Unity  473 

Clute  v.  Bond  County  785 

Coates  v.  New  York 

93,  306,  343,  348 

Cobb  v.  Kingman  128 

v.  Portland  773 

v.  Standish  788,  789 

Coburn  v.  Ellemwood  451 

Cochran  v.  McCleary  144,  148, 

193,  210,  211,  214,  680,  713,  714 


Cockburn  v.  Bank 

240 

Cocke  v.  Halsey 

159 

Codding  v.  Mansfield 

91 

Coffin  v.  Field 

101 

v.  Nantucket 

60,  221, 

757 

V.  State 

168 

18 


TABLE     OF     CASES    CITED. 


Cofran  v.  Cochran  451 

Coggeshall  v.  New  Rochelle  443 

Cogshall  v.  Pelton  436,  442 

Cogswell  v.  Lexington  788 

Cohen  v.  Wigfall  134 

Coker  v.  Birge  308 

Colbeck  v.  Brantford  785 

Colchester  v.  Brooke 

109,  110,  113,  116 
v.  Godwin  354 

v.  Lowton  445 

v.  Seaber 

109,  110,  113,  116 

Cold  Spring,  &c.  v.  Tolland  124 

Cole  v.  Green  446 

v.  Medina  752 

v.  Muscatine  783,  784 

v.  Nashville  755,  768 

Coleman  v.  Neal  685 

v.  Railroad  Co.  756 

Coles  v.  Madison  County  30,  32 

v.  Williamsburg  199,  217 

Coles  County  v.  Allison  136,  222 

Colgrove  v.  Breed  176 

Colkingv.  Baldwin  480 

Collector  v.  Day  615a 

v.  Hubbard  384,  751 

Collins  v.  Council  Bluffs         788,  789 

v.  Dorchester  242 

v.  Hatch         55,  250,  254,  263 

v.  Louisville 

291,  323,  606,  610 

v.  State  161 

Colton  v.  Hanchett  58 

v.  Rosgi  480 

Columbia  v.  Duke  330 

v.  Harrison  242,  350 

v.  Hunt  273,  605,  606 

Columbia  Bridge  v.  Kline  437 

Columbia  County  v.  King 

416,  685,  688,  696 
Columbus  v.  Arnold  348 

v.  Dahn  494,  504 

v.  Grey  74,  76 

v.  Jacques       508,  520,  521 
v.  Storey  609 

v.  Woolen  Mill  Co. 

784,  802 
Colwell  v.  Piden  751 

Comber  v.  Taunton  788 

Comer  v.  Folsom  103 

Commercial  Bank  v.  Iola 

24a,  105&,  106,  416&,  592 
Commissioners  v.  Ashville  335 

v.  Bowie  480 

v.  Boyd  509,  522 

v.  Bright  405 

v.  Butt  719 


Commissioners  v.  Cox  381 

v.  Day  406,  411 

v.  Duckett  89 

v.  Gas  Co.     253,  518, 

527 

v.  Harris  275,  302 

v.  Hudson  551 

v.  Keller         406,  411 

v.  Lecky  221 

v.  Lynch         667,  668 

v.  Mason  413 

v.  Mighels  55 

v.  Neil  74 

v.  Nesbitt  176 

v.  Nichols  420 

v.  Patterson  632 

v.  Perry  176 

v.  People  699 

v.  Powe  305 

v.  Sandusky  Co.     673 

v.  Tarver221,705,706 

v.  Taylor  535 

v.  Van  Sickle        308 

v.  Wood  783,  799,  802 

Commonwealth  v.  Alburger  491,  494, 

499,  504,  508,  512, 

530 

v.  Alger        67,  71,  93 

v.  Alleghany   County 

446,  662,  663,  665, 

666,  685,  688,  694, 

695,  696,  705,  706 

v.  Arrison  210 

v.  Athern  239 

v.  Bacon  170 

v.  Bank  210 

v.  Baxter       144,  716 

v.  Bean  255,  335,  347 

v.  Bilden        500,  505 

v.  Binns  166 

v.  Blaisdell    521,  585 

v.  Borden  347 

v.  Boston  552 

v.  Bowman  316 

v.  Breed  465 

v.  Bridge  Proprietors 

746 

v.  Brooks  538 

v.  Cambridge        461 

v.  Charleston         467 

v.  Chase  241 

v.  Cluley 

135,  713,  716,  722 

v.  Commissioners  136, 

221,  420,  480,  682, 

685 

r.  Conely  176 

v.  Cuilen  110 


TABLE     OF     CASES     CITED. 


19 


Commonwealth  v.  Curtis  225,  538 
v.  Dallas  146, 147,  357 
v.  Dearrield  579 

v.  Dennison  663 

v.  Dow  298,  351 

v.  Dagan  149 

v.  Duquet  245 

v.  Ellis  739 

T.  Emery  366 

v.  Fahey 

306,  345,  347,  349 
v.  Ford  166 

v.  Fowler  718,  726 
v.  Garrigues  144,  715 
v.  Gas  Co.  261 

v.  Gay  347 

v.  Genther  175 

v.  German  Society 

191,  193 
v.  Gill  717 

v.  Goodrich 

256,  306,  312 
v.  Gray  345 

v.  Guardians  181, 189 
v.  Hall  763 

v.  Hastings  149 

v.  Henry  669 

v.  Hitching  354 

v.  Hopkinsville  747 
v.  Huhn  141 

v.  Ipswich  215 

v.  Johnson  668 

V.  Jones 

134,  713,  722,  726 
v.  Judges  23 

v.  Lancaster  226,  685 
v.  Leech 

139,  143,  144,715 
v.  Locke  23 

v.  Low  500,  505 

v.  Lowell  Gas  Co.  628 
v.  Lyndall  706 

v.  Mann  170 

v.  Markham  261,  606 
v.  McCloskey  141, 
368,  715 
v.  McDonald  504,  530 
v.  Mc Williams  104 
v.  Meeser 

143,  714,  715,  722 
v.  Millman  521 

v.  Milton  591 

v.  Montrose  20 

v.  Painter  23 

v.  Passmore  557,  581 
v.  Patch         255,  261 


Commonwealth  v.  Pensylvania  Insti- 
tute        191,  192 
v.  Perkins 

104,  446,  685 
v.  Philadelphia 

153, 190 

v.  Pindar  366 

v.  Pittsburgh  82,  83, 

107,  151,  227,  407, 

426,  610,  662,  6oo, 

669,  684,  685,  688, 

689,  698,  699,  701 , 

705,  709,  720 

V.  Railroad  Co.    555, 

557,  560,  561,  562, 

570,  713,  719,  746 

v.  Read  360 

v.  Rice  •         320 

v.  Roark  366 

v.  Robertson 

253,  261,  326,  353 
v.  Roxbury 

9,  11,  73,  74,  113 
v.  Rush        316,  507, 
508,  512,  520,  521 
v.  Ryan  360 

v.  Sawin  461 

v.  Shaver  183 

v.  Sherman  458 

v.  Small  680 

v.  Smead  726 

v.  Smith  723 

v.  Springfield         786 
v.  Stiffee  253 

v.  Stodder    258,  261, 
291,  293,  294,  295, 
303,  326,  353 
v.  St.  Patrick's  Soc. 

178,  181,  183,  189 
v.  Sutherland 

181,  183,  188 

v.  Taylor       505,  ?U9 

v.  Temple  57;> 

v.  Turner        55.  244. 

250,  253,  298 

v.  Union  Ins.  Co.  109 

V.  Wentworth        521 

v.  Wilmington       788 

v.  Woelper  134 

v.  Wolbert  155 

v.  Woods       481,  491 

v.  Worcester  52,  261, 

326,  345,  347 

Company  v.  State  579 

Conboy  v.  Iowa  City       2(35,  346,  368 

Concord  v.  Boscawen  435 


20 


TABLE     OF     CASES    CITED. 


Concord  R.  R.  v.  Greely  465 

Conev.  Hartford  481,596,644,646,647 
Congot  v.  New  Orleans  313,  318 

Congregational  Soc.  v.  Sperry  158,204 
Congreve  v.  Morgan  794 

v.  Smith  794 

Conklin  v.  Commissioners  735 

Connden  v.  Clerke  122 

Connelly  v.  Griswold  476,  483 

Conner  v.  Bent  32 

v.  Mayor  168,  170 

v.  New  Albany  80 

Connersville  v.  Bank  629 

Connor  v.  Morris  685 

Conrad  v.  Ithaca 

63,  763,  778,  789,  790,  802 

Conservators  v.  Ash  21,  22 

Converse  v.  United  States  172 

Conwell  v.  Emrie  174,  756 

Cook  v.  Boston  751 

v.  Buffalo  86 

v.  Burlington  495,497,503,511, 

522,  545,  558,  564 

v.  Charlestown  787 

v.  Freeholders  707 

v.  Hillsdale  501,  504 

v.  Manufacturing  Co.  106 

v.  Milwaukee  788 

v.  Shipman  382 

Cook  County  v.  Railroad  Co.         737 

Cooley  v.  Board  of  Wardens  67 

v.  Freeholders      579,  757,  785 

v.  Granville  13,  55 

Coolidge  v.  Learned  511 

Coombs  v.  Purrington  788,  789 

Cooper  v.  Alden  508,  522 

v.  Dismal  Swamp  Co.         664 

v.  Lampeter  221 

v.  Reansbey  221 

v.  Savannah  654 

v.  Smith  524 

Copeland  v.  Packard  461 

Copes  v.  Charleston        104,  106,  424 

v.  Mathews  176 

Copp  v.  Neal  451 

Cordiell  v.  Frizzell  159 

Corfield  v.  Coryell  591 

Cornell  v.  Barnes  155 

v.  Guilford 

20,  100,  176,  372,  381 
Cornell  College  v.  Iowa  County  735 
Corning  v.  Green  23,  25 

Cornish  v.  Pease  206 

Corporation,  Re  898,  437 

v.  Scott  74 

Corwein  v.  Hames  360 

Corwin  v.  "Wallace  386 

Costar  v.  Brush  61,  78 


Cotes  v.  Davfrnport  783,  801 

Cotter  v.  Doty  273,  279,  285 

Cotton  v.  Ellis  168,  671 

v.  County  Commissioners    104 
Coulson  v.  Portland 

58,  88,  476,  733,  737,  738,  751 

Coulter  v.  Robertson  113,  114 

County  v.  Amy  692 

v.  Brinthall  295 

v.  Brinton  105,  108 

v.  County  35 

v.  Newport         503,  508,  515 

County  Commissioners  v.  Carter    407 

v.  Chitewood 

238 

v.  Cox       109, 

113,  114,  412 

v.  Dayton  508 

v.  Duckett 

669,  789 
v.  Gibson  761 
v.  Holcomb 

579 

v.  Jones     221 

v.  Lathrop 

491,  508,  513,  514,  522 

County  Court  v.  County  Court       127 

v.  Quarter  Sessions    23 

v.  Simmons  176 

v.  State  35 

Coventry's  Case  709 

Covill  v.  Phy  366 

Covington  v.  Boyle  247,  596 

v.  Bryant  790 

v.  Casey  639 

v.  Ludlow 

232,  234,  235,  247 

Cowan's  Case  535 

Cowdin  v.  Huff  168 

Cowen  v.  West  Troy        253,  471,  642 

Cowles  v.  Brittian  591 

v.  Gray  504,  511 

Cowley  v.  Sunderland    772,  779,  780 

Cox  v.  Griffin  510,  520 

v.  St.  Louis  346 

Coy  v.  Lyons  685,  686,  689 

Craft  v.  Jackson  County  735 

Craig  v.  Burnett  176 

v.  Railroad  Co.  573 

v.  Vicksburg  405 

Crandeil  v.  Amador  667 

v.  Nevada  591 

Crane  v.  Fond  du  Lac  446 

v.  Janesville  610 

Cranford  v.  Powell  239 

Crangle  v.  Harrisburg  480 

Crawford  v.  Delaware  564,  783 

Crawford  County  v.  Wilson    406,  410 


TABLE     OF     CASES     CITED. 


21 


Crawshaw  v.  Roxbury  91,  385 

Creal  v.  Keokuk  543,  783 

Creamer  v.  Bates  '  401 

Creighton  v.  Manson  264,  596 

v.  Piper  146 

v.  Scott  596,  635,  638 

v.  Toledo  491 

Cresson's  Appeal  437 

Crist  v.  Town  Trustees  221 

Crockett  v.  Boston  461,  495 

Crommett  v.  Pearson  221,  235 

Cronan  v.  Municipality  400 

Crosby  v.  Warren  273,  285,  308 

Cross  v.  Morristown 

284,  387,  529,  530,  535,  610,  727 
Crossoett  v.  Janesville  764,  769,  784 
Crowley  v.  Sunderland  802 

Croydon  Hospital  v.  Farley  122 

Cruger  v.  Railroad  Co.     471,  482, 484 
Cruikshanks  v.  City  Council 

481,  618,  596,  618 

Crupps  v.  Darden  277 

Culbertson  v.  Cincinnati  735 

Cumberland  v.  Magruder    54,  89,  107 

Cuming  v.  Prang  544 

Cumming  v.  Mayor    169,  481,  630,  647 

v.  Police  Jury  594 

Cunningham  v.  Squires  368,  402,  740 

Curran  v.  Arkansas  113,  114 

v.  Shattuck  480 

Currier  v.  Lowell  796 

Curry  v.  Bank  130 

v.  Mt.  Sterling  467,  471 

Curtis  v.  Butler  County   106,  221, 407 

v.  Fiedler  384 

v.  Hope  505 

v.  Keesler  491 

v.  Leavitt  82,  407 

v.  Portland  376 

v.  Whipple  1055 

Cushing  v.  Frankfort  194,  214 

Cushman  v.  Smith  478 

Cuthbert  v.  Conley  297 

v.  Lewis  685 

Cutting  v.  Stone  124 

Cuyler  v.  Rochester         381,  413,  768 

D 

Daily  v.  State  146 

Dale  County  v.  Gunter  760 

Dallam  v.  Oliver  659 

Dalrymple  v.  Whittington  406 

Dalton  v.  Northampton  483 

Dalzell  v.  Davenport  784 

Dameron  v.  Irwin  176 

Damon  v.  Grunby      23,  199,  215,  221, 
227,  376,  377,  380,  407 


Dana  v.  Jackson  70 

v.  San  Francisco  406 

v.  Wharf  Co.  433 

Dane  v,  Derby  706,  713 

Danforth  v.  Schoharie  Turnpike  Co. 

383 

Daniel  v.  Mayor  399 

v.  Memphis  47,  52 

v.  Potter  794 

Daniels  v.  Burford  175 

v.  Wilson  507 

D'Antignac  v.  Augusta  610 

Danville  v.  Sutherlin  414 

Dargan  v.  Mobile  773,  775 

v.  Waddell  808 

Darlington  v.  Commonwealth 

238,  269,  471,  499,  502,  685 
v.  New  York 

30,  39,  40,  43,  760,  779 
Darst  v.  People  308 

Dart  v.  Houston  34 

Dartmouth  College  v.  Woodward 

9a,  30,  40,  47 

Dashiell  v.  Attorney  General  440 

Davenport  v.  Bird    302,  343,  344,  358 

v.  Hallowell  372,  376 

v.  Insurance  Co. 

132,  383,  446 
v.  Kelly  318,  319 

v.  Railroad  Co. 

558,594,  613,629 

v.  Ruckman   789,  790,  791 

v.  Stewart  556 

Davenport  Gas  Co.  v.  Davenport      88 

Davidson  v.  Ramsey  County  104 

Davis  v.  Bangor 

520,  521,  747,  787,  788 
v.  Bath  13 
v.  Dudley  788 
v.  Hill  *  788 
v.  Leominster  796 
v.  Mayor 

521,  522,  566,  567,  735 
v.  New  York  61,  557 
v.  Proprietor  of  Meeting  House 

82 
v.  Sabita  503 

v.  School  District  386 

v.  State  28,  302 

v.  Woolnough  28,357 

Davison  College  v.  Chambers 

432,  433,  444 
Day  v.  Green       60,  221,  291,  327,  770 
v.  Milford  789 

Dayton  v.  Pease  753,  776,  797 

Dean  v.  Borchenius  389,  636,  651,  669 
v.  Charlton  389,  390,  730 


22 


TABLE  OF  OASES  CITED. 


Dean  v.  Gleason  594,605,616,617,  738 
v.  Todd  58,  737 

De  Armas  v.  Mayor  514 

Deaton  v.  Polk  County  488 

De  Bautn  v.  Mayor  735 

De  Ben  v.  Girard  256 

Debolt  v.  Cincinnati*!  173 

v.  Fisher  789,  799 

Decatur  v.  Paulding  670 

Decorah  v.  Bullis  211,  214 

v.  Gillis  351 

De  Cordova  v.  Galveston        405,  412 
Deeds  v.  Sanborn  634 

Deford  v.  Mercer  458 

De  Grave  v.  Monmouth  214,  385 

De  Groot,  Ex  parte  670 

Deiman  v.  Fort  Madison  634 

Delabigarre  v.  Municipality    514,  531 
Delacey  v.  Neuse  683 

Delafield  v.  Illinois 

14,  372,  385,  387,  407 
Delmonico  v.  New  York  777 

Delphi  v.  Evans 

229,  237,  238,  543,  544, 610,  639,  783 

Den  v.  Vreelandt  130 

Denning  v.  Roome  229,  241,  494, 780 

Dennis  v.  Hughes  469 

v  Maynard  35 

Denton  v.  Jackson      20,  431,435,  735 

De  Pauw  v.  New  Albany  588 

Dermont  v.  Detroit  801,  802 

De  Russey  v.  Davis  55 

Des  Moines  v.  Casady  660 

v.  Hall    491,  492,496,505, 

525, 545 

v.  Layman  482 

Desmond  v.  McCarty  239 

Detroit  v.  Blakeby   765,  785,  789,  790 

v.  Corey  39,  791,  793,  802 

v.  Jackson  374,  385 

v.  Plank  Road  Co.       519,  537 

v.  Railroad  Co.  491,  498,  499, 

500,  503,  505,  523 

v.  Redfleld  172 

De  Varaigne  v.  Fox  456 

De  Vaux  v.  Detroit  528 

Devor  v.  McClintock  129 

Devore's  Appeal  126 

De  Voss  v.  Richmond 

39,  83,  405,  419,  749 
Devoy  v.  New  York  169 

Dew  v.  Parsons  751 

*  Dewey  v.  Detroit  790 

De  Witt  v.  San  Francisco         92,  433 
Dev  y   Jersey  City 

197,  209,221,265,373 
Dey  v.  Lee  176,  228 

De  Zeng  v.  Beekman  450,  451 


Diamond  v.  Cain  84 

v.  Lawrence  County        405 

Dibolt  v.  Insurance  Co.  61 

Dickenson  v.  Fitchburg  487 

Dickey  v.  Hurlburt  136 

Dietz  v.  City  18,  297,  347 

Diggle  v.  Railroad  Co.  373 

Dighton's  Case  157 

Dill  v.  Inhabitants  372 

v.  Roberts  652 

v.  Wareham  13,381,  382,750,770 

Dillingham  v.  Snow  13,  51 

Dingley  v.  Boston  308,  456,  463 

Dingman  v.  People  61 

Dively  v.  Cedar  Falls        88,  406,  580 

Divine  v.  Harris  671 

Dix  v.  Dummerston  398 

Dixon  v.  Cincinnati  476,  740 

Dodd  v.  Hartford  58,  737,  738 

v.  Miller  14 

Dodge  v.  Commissioners  480 

v.  Gridley  289 

Doe  v.  Attica  491,  503,  507 

v.  Chunn  658 

v.  Jones  494,  497,  501,  514 

v.  Norton  118 

Doherty  v.  Waltham  788 

Dolan  v.  Baltimore  616 

Donnaher  v.  State  555,  564 

Donohue  v.  New  York  802 

Donovan  v.  New  York  381 

v.  Vicksburg  282 

Doolittle  v.  Supervisors 

728,  730,  733,  735 

Dorathy  v.  Chicago  649 

Dorchester  v.  Wentworth       476,  740 

Dorgan  v.  Boston  367,  481,  596 

Dorlon  v.  Brooklyn  790 

Dorman  v.  Jacksonville  783 

Dorsey  v.  Smith  174 

Dougherty  v.  Hitchcock  610 

Doughty  v.  Hope  402,  470 

v.  Railroad  470 

Douglas,  Re  246 

v.  Branch  Bank  121 

v.  Commonwealth  338 

v.  Placerville  55,  734 

v.  State  174 

v.  Virginia  City    82,371,407 

Doulson  v.  Clinton  City  790 

Dovaston  v.  Payne  490,  524 

Dover  v.  Fox    '  491,  507 

v.  Twombly  155 

Dover  St.,  Re  473 

Dow  v.  Bullock  158 

Downer  v.  Boston  637,  645 

Downing  v.  Marshall  436 

v.  Rugar  176,  221,  224 


TABLE     OP     CASES     CITED. 


23 


Dows  v.  Chicago  727,  737,  738 

Doyle  v.  Falconer  184 

Draining  Co.'s  Case 

463,  481,  594,  600,  617 

Drake  v.  Lowell  789 

v.  Phillips  607, 731 

v.  Railroad  Co  562,  564 

Dronberger  v.  Reed  480 

Drugo,  Re  389 

Drury  v.  Worcester  788 

Dublin  v.  Mayor  443,  520 

Dubois  v.  Augusta  250,  253,  301 

v.  Budlong  308 

v.  Campan  658 

v.  Canal  Co.  377 

Dubuque  v.  Benson         492,  496,  545 

v.  Harrison  656 

v.  Insurance  Co.       621,  629 

v.  Maloney 

494,  496,  503, 520,  525 
v.  Miller  313,  322 

v.  Rebman  368 

v.  Stout  74,  76 

v.  Wooten         246,  471,  643 
Dubuque  College  v.  Township 

385,  387 
Dubuque  County  v.  Railroad  Co. 

90, 104 

Duckwall  v.  New  Albany  80 

Dudley  v.  Frankfort  529,  53S 

*  v.  Trustees  728 

v.  Weston  242 

Duffey  v.  Tilton  522 

Duffield  v.  Detroit  476 

Duffield's  Case  683 

Duffy  v.  Baltimore  760 

Dugan  v.  Baltimore  74,  653,  656 

v.  United  States  153,  176 

Duggen  v.  McCruder  742 

Duke  v.  Rome  757 

Dumesnil  v.  Dupont  308,  312 

Dummer  v.  Jersey  City 

494,  499, 510,  520,  523 

Dunbar  v.  San  Francisco  757 

Duncan  v.  Louisville  473 

v.  Niles  176 

Dunham  v.  Rochester 

253,  261,  279,  291,  293,  295,  319 
Dunion  v.  People  491 

Dunlap  v.  County  655 

Dunleith  v.  Reynolds  625 

Dunn  v.  Charleston  457,  464 

v.  Rector  383 

Dunning  v.  Aurora  522 

v.  Railroad  Co.  51 

Dunnovan  v.  Green 

43,  90,  108,  424,  603,  738 


Durach's  Appea.  30,  34,  632 

Durant  v.  Jersey  City  643 

v.  Kauffman  633 

v.  Palmer  794,  795 

v.  Supervisors  653 

Durfey  v.  Hoag  236 

Durgin  v.  Lowell  501 

Durkee  v.  Janesvilte  607 

Durkin  v.  Troy  789 

Dusseau  v.  Municipality  476,  743 

Dutton  v.  Strong  68,  69,  70,  311 

Dwight  v.  Commissioners  487 

v.  Springfield 

476,  740,  741,  742 
Dyckman  v.  Mayor  469, 470,  605 

Dyer  v.  Wightman  488 

Dygert  v.  Schenck  579,  794 


E 


Eager,  Re  389,  610,  635 

Earle's  Case  189, 190 

East  Anglian  R.  Co.  v.  Eastern  Coun- 
ties R.  Co.  749 
East  Hartford  v.  Hartford  Bridge  Co. 
31,  78,  80 
East  Kingston  v.  Towle  101 
Eastman  v.  Meredith 

12,  15,  77,762,  763,  777*  780,786 

East  Missouri  v.  Horseman  175 

Easton  v.  Callender  176 

Road  in  537 

East  St.  Louis  v.  St.  John  46 S 

v.  Wehrung 

60,  291,  297 

v.  Wider  668 

Eaton  v.  Railroad  Co.  784 

v.  State  726 

Ebbw  Vale  Co.  749 

Edenton  v.  Wool  357 

Edgar  v.  Dodge  739 

Edgerton  v.  Huff  468 

v.  Municipality  31,  64 

Edmunds  v.  Gookin  126 

Edwards  v.  Railroad  Co.  242 

v.  Vesey  240 

Egleston  v.  City  Council  357 

Egyptian  Levee  Co.  v.  Hardin 

481,596,  616 
Egypt  St.  53,  54 

Eidemiller  v.  Wyandotte  City        476 
Ela  v.  Smith  147,  148 

Elder  v.  Dwight  Manuf'g.  Co.        366« 
Eldred  v.  Seaton  176 

Eldridge  v.  Smith  464 

Elkins  v.  Athearn  669 

Elliott  v.  Concord  796 


24 


TABLE     OF     CASES    CITED. 


Elliott  v.  Philadelphia 

773 

v.  Railroad  Co. 

573 

v.  Swartout 

177,751 

Ellis  v.  Iowa  City 

789,  799 

v.  State 

14 

Ellison,  Ex  parte 

744 

Ellwood  v.  Bullock 

354 

Elinendorf  v.  Ewen 

110,  147 

v.  Mayor 

110,124,  129, 

158, 229,  265,  743 
Elston  v.  Chicago  751 

v.  Crawfordsville  126 

Elwell  v.  Greenwood  522 

Ely  v.  Rochester  92 

v.  Supervisors  310,  760 

Embury  v.  Connor 

456,  458, 459, 467,  470 
Emerson  v.  Blairsville  84 

v.  Newberry  385 

Emery  v.  Gas  Co. 

481,  599,  605,616,648 
v.  Lowell  802 

v.  Mariaville  406 

v.  Washington  505 

English  v.  Chicot  County  106 


Episcopal,  »fec.  Soc.  v.  ] 

Episcopal 

Church 

120,  385 

Erie  v.  Canal  Co. 

30,43 

v.  Knapp 

65 

v.  Schwingle 

776,  789 

Ernst  v.  Kunkle 

783 

Eschback  v.  Pitts 

655,  659 

Estabrook  v.  State 

590 

Estep  v.  Keokuk  Co. 

381 

Estes  v.  School  District 

13 

Estey  v.  Westminster 

387 

Estwick  v.  London 

699 

Ethridge  v.  Hill 

726 

Evan  v.  Avon 

730 

Evans  v.  Erie  County 

529,  530 

v.  Evansville 

499,  503 

v.  Philadelphia  Club 

178,181 

189,  190 

v.  Trenton 

172, 176 

Evansville  v.  Evans 

494 

v.  Hall 

626,  629 

v.  Paige 

501 

v.  Pfisterer 

738 

Everett  v.  Grapes 

308 

Ewbanks  v.  Ashley  269, 

343, 

344,  358 

Ewing  v.  Filley         139, 

144, 

361,  36y 

v.  Tompson 

143 

v.  St.  Louis 

476,  727, 

738, 

739,  740 

Express  Co.  v.  Ellyson 
Eyman  v.  People 

F. 


594 

748 


Facey  v.  Fuller  210 

Fair  v.  Moore  147,  376 

Fairchild  v.  Railroad  Co.        406,  408 
Fairfield  v.  Ratcliff  605^  606 

Fallen  v.  B.iston  789 

Falmouth  v.  Watson  609 

Fane's  Case  180 

Fanning  v.  Gregorie  80,  374 

Farnuni  v.  Concord  786,  789 

Farrar  v.  Greene  788 

Farrell  v.  Mayor  778,  801 

Farrelly  v.  Cincinnati  789 

Farwell  v.  Cambridge  487 

Fauntleroy  v.  Hannibal  50 

Fauvia  v.  New  Orleans  760 

Fawcett  v.  Charles  181,  188 

Fay,  Petitioner  58,  80 

v.  Noble  82 

Fayette  v.  Shafroth  366 

Fazakerly  v.  Wiltshire  272 

Fellows  v.  Gilinau  155 

Feltmakers  v.  Davis  253 

Felts  v.  Mayor  433 

Fenelon's  Petition  596 

Fennel,  Re  J75,  319 

Fennimore  v.  New  Orleans  778 

Ferguson  v.  Chittenden  County     230 
v.  Earl  of  Kinnoul  193 

Fernald  v.  Lewis  762 

Ferwald  v.  Boston  783 

Fetterly  v.  Russell  384 

Field  v.  Commouwealth 

174,   188,  680 

v.  Girard  College  146,  18* 

Fiftli  St.,  Matter  of  783 

Findler  v.  San  Francisco  450 

Fink  v.  Milwaukee  345,  347,  358 

Finley  v.  Lietrick  126 

v.   I  hiladilphia  625 

Finnell  v.  Kates  542,  649 

Finney  v.  Oshkosh  4  >1 

Fire  Department  v.  Helfenstein     229 

v.  Kip  23,  51 

v.  Milwaukee      594 

591 

442 

751 


First  Cong.  Soc. 


Exchange  Alley,  Matter  of 
Exchange  Bank  v.  Hines 
Exeter  v.  Glyde 
Exon  v.  Starre 


v.  Wright 
v.  Atwifter 
v   Hartford 
First  Parish  v.  Cole 

v.  Stearns 


122 


468.  46!) I 

622  Fish  v.  R.  R.  Co. 
192  Fisher  v.  Baird 
162  v.  Boston 


138,  215,  222,  239 

572 

494,  503 

757,  758,  772,  774 


TABLE     OF     CASES    CITED. 


25 


Fisher  v.  Graham  265 

v.  Harrisburg 

253,  261,  272,  544,  644 
v.  McGirr  354 

v.  Prowse  795 

v.  School  District  221,  386 

v.  Thirkell  554,  794,  795 

v.  Vaughn  252 

Fiske  v.  Hazzard  103 

Fitch  v.  Pinckard 

51,  55,  350,  610,  620 

Fitzgibbon  v.  Toronto  523 

Fitzhugh  v.  Custer  698 

Flagg  v.  Palmyra  420,  423,  688 

v.  Worcester        782,  783,  797, 

799,  801,  802 

Fleckner  v.  U.  S.  Bank  374 

Fleming,  Ex  parte  663 

v.  Mershon  734,  737 

Fleming's  Appeal  97 

Flemingsburg  v.  Wilson  521 

Fletcher  v.  Auburn,  &c.  R.  R.  Co. 

524 

v.  Lowell  148 

v.  Oshkosh  401 

v.  Peck  208 

v.  Railroad  Co.  557,  564 

Flint  v.  Clinton  Co.  450 

Flint  River  Steamboat  v.  Foster    344 

Flournoy  v.  Jeffersonville       401,  651 

Floyd  v.  Comm'rs     344,  358,  360,  30(5 

v.  Turner  478 

Floyd  Acceptances  406,  426 

Fogg  v.  Nahant  788,  789 

Follett  v.  People  579 

Folsom  v.  Underhill  505 

Fonda  v.  Canal  Appraisers  741 

Foot  v.  Bronson  799 

v.  Prowse  156,  157,  159 

Foote  v.  Cincinnati  23 

v.  Milwaukee  401,  738 

v.  Salem  90 

Ford,  Re  617,  642 

v.  C  lough  13 

v.  Railroad  Co. 

557,  559,  564,  573 

v.  Williamson  376 

Fort  Wayne  v.  Jackson  123 

Fortune  v.  St.  Louis  65 

Fosdick  v.  Perrysburg     106,    07,  610 

Foss  v.  Chicago  617 

Fossett  v.  Bearce  204 

Foster  v.  Fowler  :  9,  446 

v.  Kenosha  28,  41 

v.  Lane  10 

v.  McKibben  176 

v.  Rhoadg  289 

v.  Shaw  1H0 


Fowle  v.  Alexandria  52,  753,  7!v5,  762 
Fowler  v.  Pierce  671,  706 


v.  St.  Joseph  738 

Fox  v.  Hart  531 

v.  Northern  Liberties  779 

T.  Rock  ford  536 

v.  State  302 

Franey  v.  Miller  491 

Frank  v.  San  Francisco  52,  686 

FrankfordR.  Co.  v.  Philadelphia 

291,   293 
Frankfort  Bridge  Co.  v.  Frankfort 

383,  384 
Franklin  v.  Fisk  799 

Frazier  v.  Wartield  57,  324 

Frederick  v.  Augusta 

46,  106,  337,  621,  736 

v.  Goshen  733 

Freedom  v.  Ward  579 

Freeholders  v.  Barber  291,  609 

v.  Strader     746,  760,  762 

Freeland  v.  Hastings  103,  105b 

v.  Muscatine  783 

Freeman  v.  Cornwall  176 

Freeport  v.  Bristol  461 

v.  Marks  248 

French  v.  Commissioners  476 

92,  436,  455,  508, 

516 

v.  Railroad  Co.  510 

v.  Teschemaker  106 

Frewin  v.  Lewis  729 

Friend  v.  Dennett  305,  373 

Frolichstein  v.  Mobile  330 

Frost  v.  Belmont  730,  735 

v.  Waltham  789 

Fullam  v,  Brookfield  377,  380 

Fuller,  Ex  parte  695 

v.  Edings  67 

v.  Groton  98 

Fulton  v.  Davenport  633,  636 

v.  Mehrcnfield  491 

Fulton  County  v.  Mississippi,  &c.  R. 

R.  Co.  108 

Furman  v.  Knapp  611 

v.  New  York  74 

v.  Nichel  41 

Furma  i  Stieet  124,  487,  543 

Furnell  v.  Cotes  471 


v.  Quincy 


G. 


Gabriel  v.  Clark  165 

Gaffney  v.  Gough  660 

Gahagan  v.  Railroad  Co.  566 

Galbreath  v.  Armour       546,  555,  56S 
Gale  v.  Kalamazoo  61,  295,  29. i 

v.  Mead  17& 


26 


TABLE     OF     CASES     CITED. 


Gale  v.  South  Berwick  91  Gilmore  v.  Holt 

Galena  v.  Amy         417,  685,  686,  689  v.  Lewis 

v.  Commonwealth  371 

v.  Corwith  83,  86 

Gall  v.  Cincinnati    313,  315,  498,  543 

Gallia  County  v.  Holconi  55 

Galloway  v.  London  433 

v.  Railroad  Co.  737 

Gallup  v.  Tracy  221 

Galveston  v.  Menard    70,  74,  529,  531 

Gamble  v.  St.  Louis  501 

Gano  v.  State  726 

Gardiner  v.  Boston  R.  R.  Corp.     560 

Gardiner,  &c.  Co.  v.  Gardiner        625 

Gardner  v.  Boston  643 

v.  Newburg    462,  464,  476, 

797 

v.  State  613 

Gamier  v.  St.  Louis  169 

Garrett  v.  St.  Louis        481,  601,  616 

Gartside  v.  East  St.  Louis      540,  727 

Garvin  v.  Wells  346 

Gas  Co.  v.  County  628 

v.  San  Francisco 

39,  244,  265,  384,  385 
Gaskil  v.  Dudley 
Gaskin's  Case 


101 

91,  172,  173 

v.  Pope  176 

Girard  v.  Philadelphia  30,  36,  37,  47, 

52,  113,  116,  120,  126,  431, 

437,  438 

v.  New  Orleans     435,  437,  439 

Glasby  v.  Morris  545 

Glascock  v.  Lyons  174 

Glass  Co.  v.  Boston  751 

Glastenbury  v.  McDonald  412 

Gless  v.  White  611 

Gliddon  v.  Unity  63,  176 

Goddard,  Re  54,  327,  345,  358 

v.  Jacksonville  299 

v.  Smithett  713 

Goddin  v.  Crump  104,  590 

Godfrey  v.  xilton  491,  497,  510 

Gogshall  v.  Pelton  442 

Goldersleve  v.  Alexander  134 

Goldschmidt  v.  New  Orleans  410 

Gooch  v.  Gregory  446 

Goodal  v.  Milwaukee  543,  784 

Goodale  v.  Tuttle  797 

,Goodel  v.  Baker  207 

762  Goodell,  Ex  parte 

188  Goodenow  v.  Buttrick 


Gass  v.  State 
Gassett  v.  Andover 
Gates  v.  Delaware  County 

v.  Hancock 
Gault's  Appeal 
(Jay  v.  Bradstreet 
Gearhart  v.  Dixon 
Gee  v.  Wilden 
Geiger  v.  Filor 


53 

406,  407 
407 

406,  407 
431 

346,  366 


Gentile  v.  State 
Gerard  v.  Cook 
Germania  v.  State 
Gerry  v.  Stoneman 
Ghenn  v.  Provincetown 
Gibbon  v.  Railroad  Co. 
Gibson  v.  Bailey 
Giesy  v.  Railroad  Co. 
Gilbert  v.  Roxbury 

v.  Showerman 
Gilchrist  v.  Little  Rock 
Giles  v.  School  District 
Giles'  Case 
Gilkerson  v.  Justices 
Gill  v.  Brown 
Gillette  v.  Hartford 
Gilman  v.  Deeitield 

v.  Sheboygan 

Gilmer  v.  Lime  Point 


136,  141  Goodloe  v.  Cincinnati 

383  Goodman  v.  Commissioners 

162,  165  Goodnow  v.  Commissioners 

3S7  Goodrell  v.  Jackson 

660  Goodrich  v.  Brown 

476  j  v.Chicago  59,  62,  669 

237,  241,  610  v.  Detroit  87,  371,  401,  402 

v.  Milwaukee  784 

Goodtitle  v.  Alker  496,  524 

448 

Gordon  v.  Appeal  Tax  Court  629 

v.  Baltimore  616,  629, 655,  751 

176 


341 
67,  555,  55 
Gelpcke  v.  Dubuque  84,  104, 106, 114,!  Goodwin  v.  McGehee 
495,  416,  4165,  418,  421,  424  ~ 


26 
585 
291,  632 


v.  Farrer 

v.  Preston  448 

100,  204|Gorham  v.  Springfield  23,  126,  129 

788,  789  Gorman  v.  Low  286 

90,  104  Goshen  v.  Croxton  345,  347 

232  Goshorn  v.  County  106 

465,  487,  488Goss  v.  Corporation  324 

788  Gosselink  v.  Campbell  284,  289 
SOS^oszler  v.  Georgetown 

415,  426  i  61,   93,  542,  783 

10,  134,  204  Goudier  v.  Cormack  793 

669  Gould  v.  Gapper  744 

594,  596,  632              v.  Sterling    104,  106,  108,  405, 

176  419,  423,  425 

634  Goundie  v.  Water  Co.  444 

789  Gourley  v.  Allen  669 
41,  589,  594,                 v.  Hawkins  450 

608,   622  Governor  v.  Allen  14 

462,  470                     v.  McEwen  30 


TABLE     OF     CASES     CITED. 


/ 
27 


Governor  v.  Meredith 
v.  Justices 
Graff  v.  Baltimore  474, 

Graffurs  v.  Commonwealth 
Graham  v.  Carondelet    209,  234, 

v.  State 
Granby  v.  Thurston  124, 

Grand  Chute  v.  Winegar        420, 
Grand  Rapids  v.  Hughes  274,  360, 
Granger  v.  Pulaski  County 
Grant  v.  Brooklyn 
v.  Courter 

v.  Davenport       69,  70,  74, 
371,  451,  504,  511,  628, 
v.  Erie  62,  774, 

v.  Fancher 
Graves  v.  Colby 
v.  Otis 
v.  Shattuck 
Gray  v.  Brooklyn  30,  34,  39, 

v.  Iowa  Land  Co.  518, 

v.  Sheldon 

v.  State  357, 

Green  v.  Canaan 
v.  Cheek 
v.  Dauby 
v.  Durham 

v.  Indianapolis  241, 

v  IVIfirks 

v.  Mayor    28,  30,  366,  402, 
v.  Miller 
v.  Mumford 
v.  Oaks 
v.  Portland 

v.  Reading  543,  555, 

v.  Rutherford 
v.  State 
v.  Underwood 
Greene  v.  Savannah  93,  308, 

Greensboro  v.  Mullens  291, 

Greensburg  v.  Young 
Gregory  v.  Adams 

v.  Railroad  Co.  303, 

Greley  v.  Railroad  Co. 
Grier  v.  Shacklefoid        141,  144, 

v.  Taylor 
Grierson  v.  Ontario 
Griffin  v.  Martin 
v.  Mayor 


318, 
754,  789,  790, 

v.  Rising 

v.  Steele 
Griffing  v.  Pintard 
Griffith  v.  Follett 
Griggs  v.  Foote  479,  749, 

Grim  v.  School  District 
Grindley  v.  Barker 
Griswold  v.  Stonuington 


93 
762 

475 
176 
265 ' 
357j 
127 1 
421 ! 
538, 
7S5 
790 
27 
88,1 
734 
801 
176 
349 
783 
581 
760 
527 
124 
366 
498 
124 
788 
211 
346 
446 
630 
221 
737 
500 
563 
783 
487 
238 
308 
309 
302 
596 
788 
308 
799 
368 
713 
252 
544 
753, 
795 
472 
712 
660 
176 
783 
751 
221 
398 


Groen^elt  v.  Burwell  739 

Grogan  v.  San  Francisco     30,  40,  44, 
387,  446,  514,  750 
Guelph  v.  Canada  Co.  515 

Guerrin  v.  Reese  653,  660 

Guilford  v.  Supervisors     44,588,  596 
Guillotte  v.  New  Orleans 

281,  325,  728 
Guhc  v.  New  135,  147,  357 

•Gunn  v.  Couutv  669,  685 

Gurner  v.  Chicago  618,  652 

Guthrie  v.  Armstrong  221 

v.  New  Haven  505,  537 

Gutzwell  v.  People  30,  35 

Gwynne  v.  Cincinnati  459,  498 

H. 

Haddock's  Case  189,356 

Hadley  v.  Chamberlain  233 

v.  Mayor  141, 

144,  174,  181,  1U1 

Hafford  v.  New  Bedford 

757,  758,  772,  774 
Hagan  v.  Campbell  70,  71 

Hagerstown  v.  Deckert  357,  760 

Hagner  v.  Heyberger      144,  210,  713 
Hague  v.  Philadelphia 

9,  372,  375,  381,  386,  387,  388 

Haight  v.  Keokuk  545 

Haines  v.  School  District        205,  751 

Halbert  v.  State  176 

Hale  v.  Cushman  735 

v.  Houghton  97 

v.  Kenosha       594,  616,  617,  622 

Haley  v.  Philadelphia  479 

Hali burton  v.  Frankford  379 

Hall  v.  Cockrell  176 

v.  Houghton  271 

v.  Lowell  788 

v.  McCaughey  521 

v.  Manchester  176,  788 

v.  Selectmen  665 

v.  Smith  176 

v.  Supervisors  668 

Hallenbeck  v.  Hahn  104 

Halstead  v.  Mayor 

98,  381,  382,  399,  406,  409,  412 

Ham  v.  Miller  656 

v.  Salem  462 

Hamden  v.  Railroad  Co.  560 

v.  Rice  436,  442 

Hamerick  v.  Rouse  728 

Hamilton  v.  Carthage  851 

v.  McNeil  124,  125 

v.  Railroad  Co. 

374,  450,  564 
v.  State  669,  695,  737 


28 


TABLE     OF     CASES     CITED. 


Hammer  v.  Covington  176,  673 

Hammershold  v.  Bull  176 

Hammett  v.  Philadelphia 

594,  596,  619 
Hammond  v.  Haines  23,  54,  297 

v.  McLachlin  496 

Hampshire  v.  Franklin  128,  129 

Hancock  v.  Hazzard  175,  176 

Hancock  County  v.  Clark  108 

Hannewinkle  v.  Georgetown  476,  727 
Hannibal  v.  Draper 

491,  503,  510,  523 
v.  Railroad  Co.        538,  561 
Hanover  v.  Eaton  379 

Hanson  v.  Vernon 

31,  104,  105,  106,  465,  587,  588,  589 
Harbeck  v.  Toledo  467,  469,  470,  471 
Hardcastle  v.  Railroad  Co.     666,  795 
v.  State  204 

Harding  v.  Railroad  Co.  108 

v.  Van  de water  224 

Hardy  v.  Waltham  13 

Harker  v.  Mayor  346 

Harlem  v.  New  York  730 

Harlem  Gas  Co.  v.  Mayor        388,  391 
Harlow  v.  Humiston  794,  795 

Harman  v.  Tappenden  193 

Harmon  v.  Brotherson  176 

Harness  v.  Canal  Co.  476 

Harney  v.  Indianapolis  731 ,  734 

Harper  v.  Elberton  621 

Harrington  v.  Railroad  Co.  557 

v.  School  District 

176,  399 
Baker  176 

Elliott  515,  527 

Intendant  55,  297 

Nesbit  80 

School  District  10,  232,  385 
v.  Wakeman  349 

v.  Watson  91 

v.  Whitcomb  237 

Harrison  v.  Baltimore  58,  95,  96,  775 

47,  129 

496 

590,  591 

%,  240 

785 

538,  790 

512,  514' 

599 

71,  74, 


Harris  v. 
v. 
v. 
v. 
v. 


v.  Bridgetown 
v.  Parker 
v.  Vicksburg 
v.  Williams 
v.  Simcoe  County 


Harrold 

Hart  v.  Brooklyn 
v.  Burnett 
v.  Gaven 
v.  Mayor 

273,  277,  279,  284,  311,' 780 

v.  Stone  450 

v.  Township  502 

Hartford  Bridge  Co.  v.  East  Hartford 

80,  127,  128 

v.  Ferry  Co.     78 


Hartwell  v.  Littleton  232 

Harvey  v.  Rochester  766 

Harvy  v.  Dermody  309 

v.  W.  P.  S.  Co.  406 

Harward  v.  Levee  Co.  736 

Harwood  v.  Marshall  681,  699 

Hasbrouck  v.  Milwaukee 

44,  375,  387,  388,  685 

Hascard  v.  Somamy  450 

Hasdell  v.  Hancock  98,  206 

Haskel  v.  Burlington  656 

Hasting's  Case  145 

Hatch  v.  Barr  376 

v.  Mann  173 

v.  Pendegast  318 

Havemeyer  v.  Iowa  Co.  114,  416,  416& 

Haven  v.  Asylum  241 

Hawkins  v.  Commissioners     665,  668 

v.  Governor  671 

v.  Rochester  473 

Hawley  v.  Baltimore  503 

v.  Harrall  458,  538 

Hawthorn  v.  St.  Louis  65 

Hayden  v.  Attleborough  505,  788 

v.  Madison  386 

v.  Noyes  124,  206,  259 

v.  Turnpike  Co.  176 

Hayes  v.  Appleton  258 

Haygood  v.  Justices  763 

Haynes  v.  Burlington  797 

v.  Covington  176,  372 

v.  Municipality  31 

v.  Thomas 

494,  521,  522,  527,  564 

v.  Washington  Co.  136 

Hays  v.  Pacific  Steamship  Co.        626 

v.  State  491 

Hayward  v.  School  District    204,  386 

Haywood  v.  Mayor  251,  253 

v.  Savannah  53 

Hazzard's  Case  163,  190 

Hazen  v.  Essex  County  465 

v.  Strong  305 

Hazzlett  v.  Mount  Vornon  616 

Heacock  v.  Sherman  579 

Head  v.  Insurance  Co.       55,  373,  407 

Heath,  Ex  parte 

136,  141,  368,  676,  682 
Hebert  v.  Le  Valle  514 

Heckerman  v.  Hummel  520,  521 

Hedges  v.  Madison  Co.  760,  762,  785 
Heeney  v.  Heeney  69,  70 

Heffner  v.  Commonwealth  695 

Heidelberg  School  District  v.  Horst 

376 
Heisembrittle  v.  Charleston 

250,  254,  298 
Heise  v.  Town  Council    273,  278,  280 


TABLE     OF     CASES     CITED. 


29 


Heland  v.  Lowell  245,  289 

Helen  v.  Noe  234 

Hemphill  v.  Boston  505 

Henchman  v.  Detroit  527 

v.  Railroad  Co.  522 

Hendee  v.  Pinkertou  130 

Henderson  v.  Baltimore 

605,  610,  633,  637,  639 

v.  Mayor  147 

v.  Raihvay  Co.  784 

Hendrick  v.  West  Springfield         401 

Henly  v.  Lyme  778,  788 

Hennen,  Ex  parte  174,  188 

Henry  v.  Atkinson  450 

v.  Bridge  Co.  555 

v.  Chester  605 

v.  Pittsburg  Co.  783 

v.  Railroad  Co.  476 

Henshaw  v.  Hunting  497,  581 

Hentz  v.  Railroad  Co.  565 

Hepburn  v.  Griswold  83 

Herbert  v.  Benson  520,  522 

Hersey  v.  Supervisors  616 

Herzo  v.  San  Francisco 

258,  382,  447,  750 
Hesketh  v.  Braddock 

343,  349,  356,  360 
Heslep  v.  Sacramento  173 

Hester's  Case  685 

Hewes  v.  Reis  610,  642,  643,  649 

Hewison  v.  New  Haven  772,  788 


Himmelman  v.  Bvrne  649 

v.  Cofran  648,  652,  608 
v.  Danos  610 

v.  Oliver  610,  642 

v.  Spanagel         648,  660 

Hinchman  v.  Paterson  Horse  R.  R. 
Co.         556,  559,  564,  567,  570,  573 

Hinde  v.  Navigation  Co.  772 


134 
602,  652 
635 
591 
160 
176 
^90 
232 
730 


786,   788, 


Heyneman  v.  Blake 
Heyward  v.  Mayor 
Heywood  v.  Buffalo 
Hickman  v.  O'Neal 
Hickok  v.  Plattsburg 
Hickox  v.  Cleveland 
Hicks  v.  Dora 

v.  Launcelot 
Hiestand  v.  New  Orleans 
Hi  a: bee  v.  Railroad  Co. 


468,  483 

433,  436,  456 

727,  737,  738 

357 

63 

784 

781 

159 

171 

522 


Hinds  v.  Hinds 
Hines  v.  Leavenworth 

v.  Lockport 
Hinson  v.  Lott 
Hinton  v.  Lindsay 
Hite  v.  Goodman 
Hixon  v.  Lowell 
Hoag  v.  Durfey 
Hobart  v.  Detroit 

v.  Milwaukee,  &c.  Co.  570,  573 
Hobbs  v.  Lowell  505 

Hoblyn  v.  Regem  211 

Hoboken  v.  Gear 

170,174,181,  188,267 

v.  Harrison  146,  155 

Hodgden  v.  Dexter  176 

Hodges  v.  Buffalo     55,   92,   100,  372, 

381,382,  385,  387,412,732 

v.  Mayor  294 

v.  Schuler  408 

Hoftman  v.  Jersey  City  264 

v.  St.  Louis  543,  783 

v.  Van  Nostrand  1 16 

Hoke  v.  Henderson  168,  174 

Holdane  v.  Cold  Spring  494 

Holbrook  v.  Dickenson  658 

Holladay  v.  March  289 

Holland  v.  Baltimore 

54,  58,  637,  639,  738 
v.  San  Francisco  47 

Holliday  v.  Frisbie         433,  445,  446 


Higgins  v.  Chicago        472,  473,  749 
v.  Livingston  176 

Higginson  v.  Nahant  464,  786 

Highland  Turnpike  v.  McKean        51 
Higley  v.  Bunce  265,  266 

High  v.  Shoemaker  599 

Hilbish  v.  Catherman  103,  587 

Hildreth  v.  Lowell  463,  643,  647,  709 
Hildreth's    Heirs    v.    Mclntire's  De- 
visees 
Hill  v.  Decatur 

v.  Forsythe  County 

v.  Higdon 

v.  State 

v.  Supervisors 
Hilliard  v.  Richardson 
Hilsdorf  v.  St.  Louis 


v.  People  30,  32 

Hollingsworth  v.  Detroit  414 

Holman,  Ex  parte  686,  693 

v.   Townsend  788 

Holmes  v.  Fuhlenburg  357 

v.  Jersey  City  481,  505,  596, 

727,  728,  740 

Holroyd  v.  Pumphrey  658 

Home  v.  Rouse  61 

v.  Earl  Camden  744 

Homersham  v.  Wol.,  &c.  Co.  373 

214  Hood  v.  Lynn  57,  100 

28,  245,  297  Hooker  v.  New  Haven  Co.      543,  783 

104|Hooksett  v.  Amoskeag,  &e.Co.  539, 579 

27,  593,  617  Hook  v.  Attorney  General 

747)  312,  498,  501 

579 .Hooper  v.  Emery  13 

772,  791  Hope  v.  Deadenck  5lJ0 

772  Hopkius  v.  Mason  043 


30 


TABLE     OF     CASES     CITED. 


Hopkins  v.  Mayor 

v.  Mehaffy 

v.  Whitesides 
Hopkinson  v.  Marquis  of  Exeter 

372, 


431, 


Horn  v.  Baltimore 
v.  Whittier 
Hornbeck  v.  Westbrook 
Hornblower  v.  Dunden 
Horner  v.  Coffey 
Horney  v.  Sloan 
Hornstein  v.  Railroad 
Horton  v.  Ipswich 

v.  Grand  Haven 
Hotchin  v.  Kent 
Houfe  v.  Fulton 
Houghton  v.  Davenport 
Hounsel  v.  Smyth 
Houston  v.  Clay  County 
Hovey  v.  Mayo  58,  543 

Howard  v.  Bridgewater 
v.  Church 
v.  Drainage  Co. 
v.  Gage 
v.  Providence 
v.  Rodgers 
v.  Savannah 
v.  Shoemaker 
Howard's  Case 
Howe,  Matter  of 
v.  Boston 
v.  Crawford  Co 
v.  Keeler 
v.  New  Orleans 

39,  760,  790,  794,  795 
v.  Norris  323 

Howell  v.  Buffalo 

596,  605,  751,  766,  771 


245 

376 

114 

178 

768 

155 

443 

399 

446,  686 

289 

488 

788,  789 

483 

387 

788 

204 

795 

176 

783,  784 

747,788 

481,  596 

43,  592 

681, 723 

487 

503 

253 

146,  147,  357 

109 

443 

751 

673 

385 


Huffv.  Knapp  691 
Huffman  v.  San  Joaquin  County    785 

Hughes  v.  Kline  737 

v.  Parker  144,  210 

v.  Railroad  Co.  519,  560 

Hull  v.  County  407 

v.  Supervisors  669 

Hull  in  v.  Municipality  473,  474 

Hullman  v.  Honcomp  210,  680 

Hume  v.  New  York  788,  790 

Humes  v.  Mayor  543,  783 

Hummer  v.  Hummer  141,  368 

Humphreys,  Ex  parte  222 
v.  County 
v.  Mears 
Huneman  v.  Fire  District 
Hunnewell  v.  Boston 


v.  Philadelphia 
Howerton  v.  Tate 
Howes  v.  Racine 
Howland  v.  Luce 

v.  Vincent 
Hoyle  v.  Railroad  Co. 
Hoyt  v.  Commissioners 
v.  East  Saginaw 


v.  Hudson 
v.  Thomson 
Hoxie  v.  Commissioners 
Hubbard  v.  Concord 
v.  Lyndon 
v.  Winsor 
Hubbell  v.  Waterloo 
Huber  v.  Gazly 
Hubert  v.  People 
Huddleson  v.  Ruffin 
Hudson  v.  Geary 
v.  Thorne 
Hudson  Co.  v.  State 


659 
680 
732,738 
166 
795 
558 
625,  626 
252,  596,  597 


797,  799,  800,  801 
385 
694 
788,  790 
406 
207 
693 
503,  507,  52 


Hunt  v.  Ambruster 
v.  Philadelphia 
v.  Pownal 
v.  School  District 
v.  Utica 
Hunter  v.  Candler 
v.  Field 
v.  Middleton 
v.  Newport 
v.  Sandy  Hill 

490,  494,  501,  510,  524 

v.  Trustees  491 

v.  Winsor  777 

Hurlburt  v.  Litchfield  777 

Hutchins  v.  Scott  857,  366 

Hutchinson  v.  Pratt 

231,  232,  237,  508,  509 


579 

176 

94 

738 

102 

296 

788 

204,  206 

401,  469 

174,  723,  725 

176 

524 

466 


Hyde  v.  Franklin 
v.  Jamaica 
Hydes  v.  Joyes 
Hymesv.  Aydelott 


406 

505,  786,  789 

60,  618 

483 


Illinois,  &c.  Co.  v.  St.  Louis 
Imlay  v.  Railroad  Co. 
Independence  v.  Moore 
Indiana  v.  Woram 
Indianapolis  v.  Blythe 
v.  Cross 


61,  67 

573 

302,  336 

14 

302 

494,  499,  522, 

527   535 

Imberry  237,  238]  610 

579 

596,  641 


v. 

v.  McClure 
v.  Mansur 

v.  Skeen  374 

Indianola  v.  Jones  229,  374 

28'Inghamv.  Chicago,  &c.  R.  R.  Co.  558 

263,  2S7|Inglis  v.  Railway  Co.  231,  265 

830,  333IIngram  v.  Police  Jury  531 

261  Inhabitants  v.  Cole  221,  436 

23,223,225|                       v.  Eaton  436,444 


TABLE     OF     CASES     CITED. 


31 


Inhabitants  v.  New  Orleans  59 

v.  String  121 

v.  Weir        381,  406,  407 


v.  Wood 
Innes  v.  Wylie 
Insane  Asylum  v.  Higgins 
Insurance  Co.  v.  Justices 


v.  Sanders 

v.  Sortwell 

v.  Wheelwright 

v.  Wilson's  Heirs 


22 

190,  192 

123,  685 

629 

223 

225,  230 

712 

694 


Jeffersonville  v.  Ferry  Co. 

67,  72,  77,  383 


Intendant  v. 


v.  Pippin 
Iowa  City  v.  Foster 
Irish  v.  Webster 
Iron  Co.,  Ex  parte 


Chandler  55,  299, 476, 
590,  739,  740 
727 
170 
176 
432 


v.  Patterson 
v.  Weeuis 
Jeffries  v.  Ankeney 
Jeffreys  v.  Garr 
Jenkins  v.  Andover 

v.  Thomasville 
v.  Waldron 
Jenks  v.  Chicago 

v.  Lima  Township 
Jenner  v.  Jolliffe 
Jenning's  Case 
Jersey  City  v.  Hudson 


Iron  R.  R.  Co.  v.  Ironton 
Irwin  v.  Dixion 

v.  Fowler 
Isley  v.  Stubbs 
Isom  v.  Railroad  Co. 
Israel  v.  Jacksonville 

v.  Jewett 
Ives  v.  Hulet 


67 

498,  499,  501 

794 

101 

488 
343 
488 
176 


J. 


Jackson  v. 

v 

V 

v 
v 


Belleviev 

Bowman 

Cory 

Hartwell 

Hathaway 

v.  LeRoy 

v.  Morris 

v 


788 

61,  372 

431,  443 

431,  437,  443 

496,  544 

431 

101 


v.  Pike 
v.  Pratt 
v.  Railroad  Co. 
Jacob  v.  Louisville 
Jacobs  v.  Hamilton  Co. 
James  v.  Putney 

v.  Wilwaukee 
v.  San  Francisco 


147,  653 

120 

177 

22 

105^,  592 

361 

177 

618,  642 

751 

176 

163,  695,  707 

312 


Morris  Canal  Co. 

495,  497,  530,  531 
v.  Railroad  Co.         30,  54 
v.  State         228,  505,  527, 
529,  530,  568,  741 
v.  Quaife  169 

Jewett  v.  New  Haven  774 

John  v.  Cincinnati,  &c.  R.  Co.       105 
John  Street,  Matter  of 

456,  458,  496,  513 


People  309,  368, 369,  538, 

740,  742 

436 

130 

405 

488 

10,  764 

349 

108,  422 

761 

James  River  Co.  v.  Anderson  518,  555 
Jameson  v.  People  51 

Jamison  v.  Fopiana  450 

Janesville  v.  Markoe  54 

Janey's  Executors  v.  Latane  442 

Jansen  v.  Ostrander  176 

Janvrin  v.  Exeter  91 

Jarvis  v.  Barnard  735 

v.  Dean  494 

v.  Mayor  174,  193 

Jay's  Case     '  179,  11)4 

Jefferson,  v.  Courtmire  302,  333 

Jefferson  Co.  v.  Slagle  221 


Johns  v.  Nicholls 
Johnson  v.  Almeda 

v.  Barclay 

v. 

v. 

v. 

v. 

V. 
V. 
V. 
V. 
V. 
V. 


181 

479 
361 
719 
401 

788,  789 
119 


Commissioners 

Common  Council 

Haverhill 

Indianapolis 

Irwin  529 

Lexington  629 

Municipality  770,  773 

Norway  113 

Oregon  City  629 

Philadelphia 

61,  87,  291,  293 
Scott 


Stanley 
Stark  Co. 
Steadman 
Thorndike 
Whitefield 
Wilson 
Johnson  Co.  v.  Hicks 
Johnston  v.  Charleston 

v.  Railroad  Co 
Joliet  v.  Verley 
Jonas  v.  Cincinnati 


Jones  v.  Andover 
v.  Boston 


176 

405,  414 

176 

735 

788 

176,  206 

667 

138,  144 

471 

62,  579,  753,  788 

87,  605,  607 


208,  221,  505 
476,  727,  739,  788 
v.  Ins.  Co.  245 

v.  Lancaster  383 

v.  Little  Rock  406 

v.  Liverpool  796 

v.  Mayor  106 

v.  Waltham  188 


32 


TABLE  OF  CASES  CITED. 


Jones  v.  New  Haven        39,  788,  790 
v.  Richmond  371 

v.  Robbins  367 

v.  Soulard  124 

v.  State  Auditor  699 

Jordan  v.  School  District 

176,  204,  206,  238,  386 
Joseph  v.  Odonoghue 

v.  Rogers  420 

Judge  v.  Meriden  777 

Judkins  v.  Hill  138 

Judson  v.  Bridgeport  469,  472 

v.  Reardon  347 

Junkins  v.  Union  School  District 

221,  376 
Justices,  Opinion  of 

126,  127,  128,  135,  136 
v.  Munday  666,  667 

v.  Orr  406,  412 

v.  Plankroad  Co.  727 

v.  Turnpike  Co.  707 


Kalbier  v.  Leonard  634 

Kane  v.  Baltimore  456,  462,  468 

Kansas  P.  R.  R.  Co.  v.  Russell 
Karwisch  v.  Atlanta  330 

Katliman  v.  New  Orleans  28 

Kavanaugh  v.  Sanders  155 

Kayser  v.  Trustees  20 

Kearney,  Ex  parte  184 

v.  Andrews  353 

v.  Covington  401 

Keasy  v.  Louisville  783 

Keating  v.  Sparrow  286 

Keckely  v.  Comm'rs  of  Roads        290 
Keeler  v.  Frost  221 

v.  Milledge  344,  346,  347,  369 
Keene  v.  Bristol  480 

Keen  v.  Lynch  494 

Keith  v.  Easton  788 

Keithsburg  v.  Frick  387,  424 

Kellar  v.  Savage  176,  232,  235 

Keller  v.  Hicks  408 

v.  Hyde  685 

v.  State  591,  632 

Kellogg  v.  Northampton  788 

Kelly  v.  Mayor 

373,  406,  407,  413,  792,  793 

v.  Milwaukee  58,  59 

v.  Toronto  319 

Kelsey  v.  King  494,  544,  559 

v.  Wright  158,  159 

Kendall  v.  King  82 

v.  Stokes  175,  695 

v.  United  States  663,  670,  692 

Kennedy  v.  Board  of  Health  308 


Kennedy  7,  GoviEgton      74,  445,  512 
v.  Municipality  433 

v.  Newman  470 

v.  Phelps  308,  309,  312 

v.  Sowden  273,  285,  289 

ts  Washington  669 

Kentucky  v.  Dennison  14 

Kentucky  Seminary  v.  Wallace 

121,  123 
Kexuner  v.  Commonwealth 

209,  244,  265 
Kerlin  v.  Campbell  496 

Kerr  v.  Trego 

143, 144,  210,  213, 675,  676,  680 
Ketchum  v.  Buffalo 

82,  86,  313,  315,432,  521 

Kettering  v.  Jacksonville         351,  355 

Keyes  v.  Tait  500 

v.  Westford  55,  221,  376 

Keyser  v.  School  District 

221,  385,  386 

Kidder  v.  Peoria  469,  471 

Kimball  v.  Boston  772,  773 

v.  Kenosha  456,  527 

v.  Lamprey         207,  239,  684 

v.  Marshall  207,  222 

v.  School  District  386 

Kimble  v.  Canal  Co.  480 

Kincard's  Appeal  306 

King   v.  Beesten  221 

v.  Boston  221 

v.  Bristol  Dock  Co.  669 

v.  Butler  176,  222 

v.  Chase  795 

v.  Cross  311 

v.  Duke  of  Bedford  134 

v.  Grant  53 

v.  Hardwick  242 

v.  Harris  225 

v.  Ingrain  238 

v.  Jacksonville  343 

v.  Jones         .  311 

v.  Lisle  159 

v.  Madison  629 

v.  Mayor  159,  174,  224 

v.  Merchant  Tailors'  Co.       287 

v.  Miller  222 

v.  Mitchell  134 

v.  Norris  232 

v.  Round  230 

v.  Russell  311 

v.  Sergeant  134 

v.  Williams  222,  723 

v.  Wilson 

104,  415,  4165,  693,  737 

Kingman  v.  County  Comm'rs  476 

v.  School  District  385 

Kingsberry  v.  Pettis  Co.  413 


TABLE     OF     CA3ES     CITED. 


33 


Kingsbury  v.  School  District 

199,  205,  206,  221,  376 
Kingston  v.  Horner  51 

Kinzie  v.  Chicago  132 

Kip  v.  Patterson     253,  291,  321,  344, 
246,  348,  357,  609 
Kirby  v.  Boylston  Market  Assoc. 

327,  788,  795 
v.  Shaw  594,  596 

Kirk  v.  King  442 

v.  Nowill  273,  279,  288 

Kirkman  v.  Handy  308 

Kitredge  v.  Milwaukee  786,  796 

Klinkener  v.  School  District 

494,  510,  523 

Knapp  v.  Grant  424 

Kneeland  v.  Milwaukee  616,  632 

Knight  v.  Railroad  Co.  558 

v.  Wells  113, 117 

Kniper  v.  Louisville  291 

Knowles  v.  Muscatine  537 

Knowlton  v.  Inhabitants  386 

v.  Supervisors  622 

Knox  v.  Heaton  530 

v.  Lee  83 

v.  Peterson  610,  658 

Knox  Co.  v.  Aspinwall  104,  405,  416, 

417,  418,  419,  420,  421, 

423,  687,  688,  693,  707 

v.McComb  445 

Koehler  v.  Iron  Co.  130 

Koester  v.  Ottumwa  788 

Koppikus  v.  Commissioners  483 

Korah  v.  Ottawa  539,  579 

Krickle  v.  Commonwealth      348,  353 

Kunkle  v.  Franklin  1U3 

Kupper  v.  South  Parish  221 

Kyle  v.  Malin  55,  469,  605,  639 

Kynaston  v.  Shrewsbury  202 


Labourdette  v.  Municipality  199,  220 
Lackland  v.  Railroad  Co. 

555,  562,  564 
Lacon  v.  Page  788 

Lacour  v.  New  York        753,  778,  780 
Lade  v.  Shepherd  494,  496 

Lafayette  v.  Bush     476,  480,  543,  783 
v.  Cox  55,  84, 106 

v.  Fowler 

619,  638,  641,  596,  738,  783 
v.  Jenners  20,  24,  535 

v.  Male  Orphan  Asylum 

616 
v.  Spencer  783 

Lafayette,  &c.  R.  R.  Co.  v.  Geiger 

105 


Lafon  v.  Dufrocq  28,  357 

La  Grange  v.  State  Treasurer         239 
Lake  v.  Williamsburg  648 

v.  Trustees  407,  412 

Lake  View  v.  Letz  307,  308 

Lakin  v.  Ames  129 

Lambar  v.  St.  Louis  799 

Lamb  v.  Lane  482 

v.  Lynd  144,  674,  675,  676 

v.  Shays  446 

Lancaster  v.  Richardson  332 

Lancey  v.  Bryant  242 

Lander  v.  McMillan  704 

v.  School  District  204 

Landolt  v.  Norwich  788,  789 

Lane  v.  Cotton  176 

v.  Kennedy  528,  529 

v.  School  District  385 

v.  Sewell  173 

Lane  County  v.  Oregon  653 

Lanfear  v.  Mayor  281 

Langdon  v.  Castleton      169,  399,  403 
v.  Fire  Department  611 

Langhorn  v.  Robinson  588 

Langsdale  v.  Bonton  237,  238 

Langworthy  v.  Dubuque         633,  634 
Lansing  v.  Treasurer 

41,  114,  608,  693,  716 
v.  Smith  69,  70,  74 

v.  Van  Gorder 

401,  579,  647,  662 

Larkin  v.  Saginaw  761,  785 

Lamed  v.  Burlington  610 

La  Rosa  v.  Mayor  318 

Lathrop  v.  Bank  130 

v.  State  176 

Laver  v.  McLaughlin  214 

Law  v.  Crombie  789 

Lawhorne.  Ex  parte  158 

Lawrence  v.  Fairhaven  797 

v.  Gt.  North  R.  Co.       781 

Lawrenceburg  v.  West  291,  302 

Lawson  v.  Commissioners  739 

v.  Railway  Co.  104 

v.  Scott  739 

Lawton  v.  Commissioners  368 

v.  Erwin  155 

Layton  v.  New  Orleans       36, 126, 129 

Lazarus  v.  Toronto  326 

Lea  v.  Hernandez  110 

Leavenworth  v.  Casey  799,  801 

v.  Mills  400,  401 

v.  Norton 

106,  605,  606,  610 
v.  Rankin 

371,  381,  401,  522 
Leavenworth  Co.  v.  Miller  104 

Leazure  v.  Hillegas  444 


34 


TABLE     OF     CASES     CITED. 


Lebanon  v.  Heath  383 

Le  Claire  v.  Davenport    313,  318,  319 
Le  Clercq  v.  Gallipolis 

456,  507,  515,  521 

Le  Cousteleux  v.  Buffalo   55,  432,  430 

Lee  v.  Fleiningburg  96 

v.  Lake  494,  498,  499 

v.  Sandy  Hill  495,  769,  770 

v.  Temple  ton  751 

v.  Thomas  613 

v.  Walis  287,  356 

Lee  County  v.  Rogers 

41,  416,  4165,  694 


Leftwich  v.  Mayor 
Legrand  v.  The  College 
Lehigh  Co.  v.  Kleckner 
Leicester  v.  Pittsford 
Leland  v.  Portland 
Leman  v.  New  York 
Lemington  v.  Blodgett 
Leonard  v.  Burlington 

v.  Canton 
Le  Roy  v.  Mayor 
Les  Bois  v.  Bramell 
Lesley  v.  White 
Leslie  v.  St.  Louis 
Lessee  v.  Church 

v.  Saunders 
Levering  v.  Mayor 
Levy  v.  New  York 
Lewenthal  v.  New  York 
Lewis,  Ex  parte 

v.  Henley 

v.  Mayor 

v.  Oliver 

v.  San  Antonio 

v.  State 

v.  United  States 
L*  .viston  v.  Proctor 
f  jxington  v.  Butler 
v. 


R. 


v.  Mu'.liken 
Libby  v.  Downey 
Liddy  v.  St.  Louis  R 
Lincoln  v.  Hapgood 
v.  Worcester 
Lindsey  v.  Luckett 
Linning  v.  Charleston 
Liquidators  v.  Municipality 
Litchfield  v.  Polk  County 


509 

132 

750 

788 

498 

766 

750 

107 

55,  299,  751 

692 

514 

176,383,761,762 

469,  476,  738 

529 

529 

131 

754 

802 

72 

737 

399 

165,  633,  680 

501,  531 

363 

295 

343,344,  358 

405,  420, 422a 

Head  ley 

234,  235,  247,  610,  639 
McQuillan's  Heirs 

481,  573,  596,  602 

685,  686 

323 

Co.  572 

177 

751 

161,  680,  682 

624 

41 

738 


v.  Vernon 

518,588,589,596,639,653 
Little  v.  Merritt  176,  204,  206 

Littlefield  v.  Maxwell  511 

Little  Rock  v.  State  Bank  407 


Littleton  v.  Richardson  767 

Livingston  v.  Albany  622 

v.  Mayor  481,  483,  503 

v.  McDonald  799 

v.  Pippin  97,  381 

v.  Wider  592,  688 

Lloyd  v.  New  York 

30,  752,  777,  778,  788,  790 

Loan  v.  Boston  788,  789 

Locke  v.  Rochester  228 

Lockwood  v.  Mayor  792 

v.  St.  Louis 

58,  481,  596,  616,  737,  738 

Logansport  v.  Blackemore  374 

v.  Dunn  498,  499,503,570 

v.  Legg  218,  230 

v.  Wright  802 

Loker  v.  Brookline  381,  383,  386,  788 

v.  Damon  788 

Lombard  v.  Cheaver  295 

London  v.  Barnardston  349 

London,  City  of  726 

v.  Wood  287,  356 

v.  Vanacre   162, 253,  288,  290 

Londonderry  v.  Andover  51 

v.  Derry  127 

Long  v.  Fuller  480 

Longworth  v.  Evansville  26 

Looinis  v.  Moffitt  627 

v.  Spencer  176,  177 

Lord  v.  Bigelow  22 

v.  Governor  210 

v.  Mayor  757 

Lord  Bruce's  Case  179,  180,  190 

Lord  Hawley's  Case  190 

Lorillard  v.  Monroe     20.754,770,  777 

Lot  v.  Ross  605,  610,  613 

Loud  v.  Charlestown  625,  738 

Louisiana  State  Bank  v.  Orleans 

Nav.  Co.  55,  393,  407 

Louisville  v.  Bank  74,  544,  655 

v.  Commonwealth 

30,  39,  432,  445,  615 
v.  Henderson  401 

v.  Henning  629,  751 

v.  Higdon  159 

v.  Hyatt  639,  596 

v.  McKean 

54,  297,  700,  701,  703,  712 
v.  McKegney    231, 237,  238 
v.  Rolling  Mill  Co.  543,783 
v.  University  of  Louis- 
ville 34,  39,  43,  47 
v.  Zanone  517 
Louisville  City  R.  R.  Co.  v.  Louis- 
ville 61 
Loute  v.  Allegheny  County 

686,  687,  705,  709 


TABLE     OF     CASES     CITED. 


35 


Love  v.  Hinkley  57 

v.  Ramsour  35,  127 

v.  Schenck  35,  127 

Lovell  v.  St.  Paul  400 

Lovett  v.  Steam,  &c.  Association  450 

v.  Railroad  Co.  527 

Lovingston  v.  Wider  592,  738 

Low  v.  Commissioners  of  Pilotage 

154,  344,  36G 

v.  Evans  150,  189 

Lovel  v.  Pettingill  232 

v.  Towns  671,  716 

Lowber  v.  Mayor  19,  30,  110 

Lowden  v.  Cincinnatti  400 

Lowell  v.  Boston  1056,  592 

v.  French  649 

Oliver  103 

Ra.lroad  Co.  560,  796,  768 

Short  788,  795,  796 

Simpson  584 


Spaulding  585,  788,795,796 


v.  Wentworth 
v.  Wheelock 
v.  Wyman 

Lownsdale  v.  Portland 

Loze  v.  Mayor 

Lucas  v.  Pituey 

v.  San  Francisco 

Ludlow  v.  Tyler 

Luinbard  v.  Aldrich 


642,  649 
237,  649 
649,  759,  760 
498 
353 
82 
400 
118 
241,  355 


-umsden  v.  Milwaukee   482,  483,  617 

L/'and  v.  Tynesboro  788 

Lutterloh  v.  Commissioners  707 

Lycoming  v.  Union  44 

Lyman  v.  Amherst  789 

v.  Bridge  Co.  772 

v.  Burlington  476 

v.  Edgarton  777 

Lyme  v.  Henley  109 

Lynch  v.  Alexandria  594 

v.  Lafrland  158,  160 

v.  People  348 

v.  Smith  789 

Lynchburg  v.  Norvell  414 

Lynde  v.  Winnebago  Count*- 

108,  405*  422,  428 

Lyon  v.  Adams  685 

v.  Adamson  376 

v.  Commonwealth  134 


M 


Macbeth  v.  Haldeman  176 

Macey  v.  Titcombe  388 

Machell  v.  Nevinson  224 

Macklot  v.  Davenport  141 

Macoa  v.  Franklin  494,498 

Macy  v.  Indianapolis  543,  783 


Maddox  v.  Graham  104,  372,  373,405, 
414,  426,  685,  688,  695,  696, 
701,  706,  712 
Madison  v.  Bartlett  414 

v.  Hatcher  302 

v.  Kelso  170 

v.  Korbly 

151,183,  188,191,  193 

v.  Ross  797 

v.  Whitney  626,  629 

Madison  County  v.  Alexander        685 
Magee  v.  Commonwealth         529,  596 
v.  Supervisors  669,  676 

Magill  v.  Kauffman  383 

Magruder  v.  Swann  671 

Maher  v.  Chicago  383,  400 

Mali  on  v.  Railroad  Co.     524,  557,  564 
Mahoney  v.  Bank  22 

Mahony  v.  Railroad  Co.  789 

Main  v.  McCarty  149,  347 

Malchus  v.  Highlands  603 

Maleverer  v.  Spink  756 

Mallory  v.  Mallett  114 

v.  Supervisors  172 

Malone  v.  Murphy  366 

Maloy  v.  Marietta  27 

Maltus  v.  Shields  633 

Manchester  v.  Hartford  788,  790 

v.  Herrington  176 

Mandershid  v.  Dubuque 

499,  500,  505,  579,  788,  789,  795 
Manice  v.  Mayor  402 

Mankato  v.  Meagher  498,  511 

v.  Willard  520 

Manley  v.  Gibson  492,  493,  496- 

v.  St.  Helen's  Canal  Co.     781 
Mann  v.  Pentz  131 

Manning  v.  Fifth  Parish  285,  241 

Manufacturing  Co.  v.  Davis  117 

Marble  v.  Worcester  788 

Marbury  v.  Madison  153,  695 

March  v.  Commonwealth  251,302 

Marchant  v.  Langworthy  204 

Marietta  v.  Fearing     30,  253,  263,  289 
Markham  v.  Mayor  543,  783 

Markle  v.  Akron  58,  244,  245,  263,366 
v.  Wright  210,  714 

Marriage  v.  Lawrence  241 

Marriott  v.  Baltimore  773 

v.  Hampton  751 

Marsh  v.Fulton  Co.    106,  108,372,381, 
387,  416,  418,  419,  420,  424,  426 


Marshall  v.  Guion  74 

v.  Vickshurg  616 

Marshall  County  v.  Cook  108,  424 

Martin  v.  Bank  444 

v.  Evansville  74,  4y? 

v.  Lemon  221 


* 


36 


TABLE     OF     CASES     CITED. 


Martin  v.  Mayor    39,  61, 176,  381,  382, 

413,  473,  760,  778 

v.  O'Brien  67 

Mason  v.  Bristol  379 

v.  Fearson  62 

v.  Lancaster  609,  632 

v.  Muncaster  431 

v.  Pitt  126 

Master  v.  Warren  789 

Maurice  v.  Xew  York  605 

Matheney  v.  Golden  61 

Matthews  v.  Kelsey  558,  581 

Maurin  v.  Smith  671 

May  v.  Detroit  388 

v.  Railroad  Co.  482 

Mayberry  v.  Franklin 

Mayhew  v.  Gayhead  236 

Mayo  v.  Murchie  499 

v.  James  476,  744 

Mayor,  Matter  of  616 

v.  Allaire  302 

v.  Attorney  General  437 

v.  Avenue  R.  R.  Co. 

272,  291,  293 
v.  Bailey 

462,  610,  772,  779,  797 
v.  Bank  of  Tennessee 

590,  615 
v.  Beasley  253, 255,  291,  606 
v.  Cashman  616 

v.  Colchester 

v.  Colgate  660 

v.  Conner  210 

v.  Cunliff 

v.  Elliott  437,  442 

v.  Franklin  522 

v.  Geisel  190 

v.  Gloucester  437 

v.  Graves  240 

v.  Gravier  520, 522 

v.  Hartridge  291,  629 

v.  Henly  745 

v.  Hopkins  43,  514 

v.  Horn  155 

v.  Howard  655,  656 

v.  Hyatt  264,  302,  323 

v.  Leverich  514 

v.  Lockett  147 

v.  Long  242,  360,  469 

V.  Lord         685,  688,  693, 699, 
701,  711,  756,  757,  759 
v.  Lyme  Regis  240 

v.  McKee  655 

v.  Maggioli  531 

v.  Meserole  58,727 

v.  Morgan  139,  245,  368 

v.  Mutual  Bank  613 

v.  Nichols  253,  264,  323 


Jayor  v.  OruLurg 

101 

v.  Ordrenan 

272 

277,  279 

v.  Pedley 

313 

v.  Pentz 

757,  759 

v.  Peyroux 

318 

v.  Phelps 

275 

v.  Pilkington 

178 

v.  Regina 

700 

v.  Richardson 

479,  485 

v.  Rood 

v.  Rouse 

302 

v.  Rowland 

65 

v.  Savannah 

v.  Shaw 

174,  183,  184, 

740, 

741,  743 

v.  Sheffield 

790 

v.  Shelton 

2C 

v.  Simpson 

197 

v.  Slack 

806 

v.  State 

2S 

137,  659 

v.  Steamboat  Co 

. 

v.  Stuyvesant 

504,  507 

v.  Thorne 

256,  83S 

v.  Tows 

34 

v.  Troy  R.  R.  Co. 

795 

v.  Williams 

339 

v.  Winfield 

253,  255 

v.  Winter 

382 

v.  Wright 

190 

,242,511 

v.  Yuille         55, 

272, 

375,  279, 

281,285,291,295,325,606 
Mayor  of  Albany's  Case  742 

Durham's  Case  156,  683 

Mays  v.  Cincinnati 

55,  251,  292,  295,  593,  605,  606 
Maysvillev.  Shultz  52 

McAden  v.  Jenkins  730& 

McAllister  v.  Clark  310 

McCall  v.  Byram  Man'fg  Co.  158,  159 
McCalla  v.  County  785 

McCann  v.  County  480 

McCartee  v.  Orphans'  Soc.  432,433,436 


McCarthy  v.  Bauer 

776 

v.  Chicago 

153 

582 

v.  Syracuse 

554, 

790, 

801 

v.  Village 

785 

McClung  v.  Silliman 

670, 

692 

v.  St.  Paul 

169 

McCollough  v.  Mayor 

778 

McComber  v.  Taunton 

788 

McConnel  v.  Lexington 

494 

McCoombs  v.  Akron 

783 

McCord  v.  Ochiltree 

442 

McCormick  v.  Bay  City 

176, 

229, 

247 

McCoy  v.  Chillicothe 

176, 

177 

v.  Harnett 

705 

McCrackin  v.  San  Francisco 

89,  219,230,372,  382,383,38 

7,446 

.750 

TABLE     OF     CASES     CITED. 


37 


McCready  v.  Guardians  221 

McCrory  v.  Griswold  476 

McCulloch  v.  State  248 

McCullom  v.  County        536,  537,  789 
McCullough  v.  Maryland  18,  588,  591 
v.  Mayor  413.  677 

v.  Moss  407 

McCunn's  Case  163 

McCure  v.  Bennett  407 

McCutchen.  Re  801 

McDermond  v.  Kennedy  607 

McDermott  v.  Met.  Police  Board 

149, 245 

McDonald  v.  Elfe  744 

v.  Red  "Wing  757 

v.  Schell  367,  482 

v.  Schneider  449 

McDonough  Will  Case 

14,427,435,436,437,439 
McDonough  v.  Nevada  City  789 

McDougal  v.  Supervisors  65 

McEwen  v.  Taylor  78 

McFarlane  v.  Insurance  Co.  241 

McFarland  v.  Kerr  433.  531 

v.  Railroad  Co.  570 

McGary  v.  Lafayette         769,  770,  789 
McGear  v.  Woodruff  361 

McGehee  v.  Mathis  481,  596 

McGinnity  v.  New  York         790,  795 
McGonigle  v.  Allegheny  596,  638 

McGraft  v.  Brock  458,  656,  660 

McGregor  v.  Boyle  544,  801 

McGuinn  v.  Peri  639 

Mclnnery  v.  Reed  618 

Mclntire  v.  State  488 

Mclntyre  v.  Wood  692 

McKee  v.  McKee  285 

v.  Perchment        499,  501,  503 
v.  St.  Louis  494,  499 

v.  Town  Council  295,  744,  751 
McKean  v.  Louisville  669 

McKenna  v.  Commissioners  503 

McKnight  v.  New  Orleans  371 

McLaughlin  v.  Cluley  135 

v.  Municipality 

473, 474,  778 

v.  Railroad  Co.    521,  504 

v.  Stevens      74,  302,  01)4 

McLean  v.  Brantford  384 

v.  Flagg  590,  008 

McLot  v.  Davenport  737 

McMahon  v.  Railroad  Co.  488 

McMasters  v.  Commonwealth  481,590 

McMillen  v.  Boyles  40,  424 

v.  City  CouncU         273,  300 

McNamara  v.  Estes  030 

McRae  v.  O'Lain  385 

McSpedon  v.  Mayor  383,  401 


McWilliams  v.  Morgan  510 

Meagher  v.  County  169,  174,  357 

Meacham  v.  Railroad  Co.  487 

Mealing  v.  Augusta  744 

Means  v.  Hendershott  91 

Mears  v.  Graham  407 

v.  Wilmington  783 

M.  E.  Corporation  v.  Herrick         235 
Mechanics'  Bank    v.    Bank    of 

Columbia  376 

Mechanicsburg  v.  Meredith    579,  785 
Medical  Institute  v.  Patterson  22 

Med  way  Cotton  Manuf.  Co.  v. 

Adams  121 

Meech  v.  Buffalo  398 

Meeker  v.  Van  Rensselaer      238,  305 
Megowan  v.  Commonwealth 

298,  299,  330 
Memphis  Freight  Co.  v.  Memphis 

464,  465 

Mendota  v.  Thomson  351 

Mercer  County  v.  Hackett 

104,405,  418,  420,  421,  423,  424 
Mercer  v.  Railroad  Company 

43,  423,  467,  518,  538,  555,  558,  570 
Merchants'  Bank  v.  Cook  702 

Merriamv.  Moody     55,  353,  656,  657 
v.  New  Orleans  291,  594 

Merrick  v.  Amherst  592,  594 

v.  Plank  Road  Co.  385 

Merrill  v.  Burbank  450 

v.  Dixfield  398 

v.  Humphrey  737,  738 

v.  Plainfield  98,  733,  734 

Mersey  Dock  Cases   778,  781,'789,  802 
Mersey  Docks  v.  Gibbs      77,  752,  790 
v.  Penhallow  752 

Merwin  v.  Chicago  65 

Messenger  v.  Buffalo  375,  403 

Metropolitan  Board  of  Health  v. 

Heister  9,  149,  303,  518 

Metcalf  v.  St.  Louis  245,  305 

Methodist  Church  v.  Baltimore       59, 

252,  471,  476,  482 

v.  Hoboken 

495,  503,  509,  512,  520,  523 

Meuser  v.  Risdon       60,  018,  048,  652 

069 


Meyer 


Carolan 

Muscatine 

58,    84,    104,    106,    393,  405, 

407,  414,  416,  418,  420,  421 

v.  Newark  488 

Michel  v.  Police  Jury  400 

Michie,  Re,  58,  639 

Middlesex,  &c.  v.  Davis  117 

Middletown  v.  Allegheny  Co.  82 

v.  Lowe  671 

Milburn  v.  Cedar  Rapids  545 


38 


TABLE     OF     CASES     CITED. 


Milburn  v.  Railroad  Co. 

545,  559,  562,  574 

Miles  v.  Bough  231,  265 

v.  Chamberlain  273,  282 

v.  Charletou  28 

Milford  v.  Holbrook  788,  795 

Milford  County  v.  Brush  121 

Milhau  v.  Sharp  61,  | 

520,  522,  546,  551,  562,  567,  735  j 

Mill  Dam  Foundry  v.  Hovey  180 

Miller  v.  Burch  308,  312 

v.  Ford  176 

v.  Iron  Co.  762 

v.  Lerch  437 

v.  Lynchburg  406 

v.  Milwaukee 

v.  North  Fredericksburg     785 

v.  Savannah  Fire  Co.  94 

v.  Supervisors  163 

v.  Thomson  406 

Milliard  v.  Lafayette  473,  474 

Mill's  Case  709 

Mills  v.  Brooklyn  753,  783,  797, 

799,  800,  801,  802 

Charleton   387,  389,  652,  738 

Gleason  82,  216,  385,  387, 407 

Thornton  625 

Williams  23 

Davidson  245,  305,  309 

Mayor  125 

v.  Williams  29 

Milward  v.  Thatcher  165,  166 

Milwaukee  v.  Milwaukee  128 

v.  Railroad  Co.  559 

Milwaukee  Iron  Co.  v.  Hubbard    738 

v.  Schubel      740 

Milwaukee  R.  R.  Co.,  Case  of        712 

Miner's  Bank  v.  United  States        726 

Miner's  Ditch  Co.  v.  Zellerbach 

29,  372,  450,  749 
Minor  v.  Bank  175 

Minot  v.  Boston  Asylum  122 

v.  Curtis  128 

Minturn  v.  Larue  55,  78 

Mitchell  v.  Burlington 

84,  105a,  407,  4165 
v.  Davenport  653 

v.  Foster  136 

v.  Hay  669 

v.  Lemon  347 

v.  Milwaukee  388,  738 

v.  Rockland  13,  93,  149, 

176,  305,  381,  768,  772,  775 
v.  Turnpike  Co.  480 

Moale  v.  Baltimore 

455,  481   503,  589,  596 

Mobile  v.  Dargan  622 

v.  Eslava  71 


v. 
v. 
v. 
v. 
Milne  v 
v 


156 
727 
346,  347 
387 
788 
457 
459 
204,  237,  242,  355 
303 
770 
416 


Moir  v.  Monday  353 

Moiser  v.  Tompson  130 

Monaghan  v.  Philadelphia      685,  687 
Moneson  v.  Sanford  788 

Monmouth  v.  Gardiner  579,  580 

Monterey  v.  Commissioners    476,  741 
Montpelier  v.  East  Montpelier 

37,  41,  44,  47,  127 
Montville  v.  Haughton 
Mooers  v.  Smedley 
Mooney  v.  Kennett 
Moor  v.  Cornville 
Moore  v.  Abbott 

v.  Baltimore 
v.  Mayor 
v.  Newfield 
v.  People 
v.  Railroad  Co. 
Moran  v.  Commissioners 
v.  Miami  County 

108,  404,  419,  420,  425 

Morano  v.  Mayor  313,  321 

Morey  v.  Newfane  30,  762 

Morford  v.  Barnes  367,  483 

v.  Unger  28,  126,  635 

Morgan  v.  Beloit  693 

v.  Dubuque  400 

v.  Quackenbush         137,  144 

Morrell  v.  Dixheld  176,  386 

v.  Sylvester  153 

Morris  v.  Baltimore  751 

v.  Bowers  491 

v.  Burdett  173 

v.  Chicago  468 

v.  People  25,  98 

v.  Rome  332 

v.  Underwood  723 

Morris'  Case  712 

Morris  Canal  Co.  v.  Fisher  405 

v.  Jersey  City 

497,  727,  740, 741 
Morrison  v.  Lawrence 

229,  236,  237,  768,  772 

v.  Hershire        596,  638,  738 

v.  McDonald  147,  357 

Morse  v.  Richmond  788 

Moses  v.  Railroad  Co. 

525,  555,  558,  558,  560,  570,  574 


Mosey  v.  Troy 
Mosley  v.  Alston 
v.  Walker 
Moss  v.  Oakley 
Mott  v.  Hicks 

v.  Pa.  R.  R. 

v.  Reynolds 


788 

210 

313 

406 

176,  376,  383,  407 

Co.  61 

232, 233 


Mount  Carmel  v.  Wabash  Co.  291,299 
Mount  Morris  Square,  Re 

229,  740, 742,  743 


TABLE     OF     CASES     CITED. 


39 


Mount  Pleasant  v.  Breeze 

250,  302,   329 
Mount  "Washington  Co.,  Petition 

of  483 

Mouse's  Case  756 

Mowatt  v.  Wright  751 

Mower  v.  Leicester  13,  762,  76:1,  786 
Movamensing  Com.  v.  Long  520,  521 
Mul larky  v.  Cedar  Falls  580 

Mumuia  v.  Potomac  Co.  113, 114 

Municipality  v.  Bank       611,  616,  628 
v.  Blanc 

v.  Blineau  256,  312 

v.  Botts  652 

v.  Caldwin  176 

v.  Commissioners  52 
v.  Cotton  Press  Co.  610 
v.  Cutting  244,313,317, 
322,  343,  344,  353 
v.  Dubois  291 

v.  Duncan  594,  621 

v.  Dunn  481 

594,  596,  600,  619 
v.  Gas  Light  Co.  539 
v.  Guillotte  594,600,650 
v.  Hart  64 

v.  Johnson  621,  622 

v.  Kirk  511 

v.  Levee  Co.  473,  495 
v.  McDonough  407,  434 
v.  Michoud  634 

v.  Morgan  354 

v.  Palfrey  504 

v.  Pance  656 

v.  Pease  67,  76 

v.  Railroad  Co.  611,  616 
v.  Theatre  Co.  46 

v.  Ursuline  Nuns  634 
v.  Wheeler  595 

v.  White  594,  596,  600 
v.  WilsoD  302 


Muscatine  Turnverein  v.  Funck 

110, 114 
Musgrove  v.  Catholic  Church 

249,  306,  307 

v.  Nevisnn  202 

Musser  v.  Johnson  131 

Muzzy  v.  Shattuck  176 

Myers  v.  Bank  18 

v.  Croft  444 

v.  Irwin  22 

v.  People  357,  366 

v.  Simms  476 

Mylert  v.  Sullivan  Co.  751 

Myrick  v.  La  Crosse  471,  642 


N 


Wilson 

Munn  v.  Pittsburg  802 

Munsell  v.  Temple  295 

Murdock,  Ex  parte  138 

v.  Academy  191,  193 

v.  Aiken    *  423 

v.  Warwick  789 

v.  Woodson  26,  28 

Murphy  v.  Chicago  555,  563,  783 

v.  City  Council         69,  73,  76 

v.  Gloucester  788 

v.  People  366 

Murray  v.  Lardner  405 

Murtaugh  v.  St.  Louis  775 

Muscatine  v.  Hershey  74,  76 

v.  Railroad  Co. 

41,594,  608,622! 
•  v.  Steck    147,  357,  368,  369] 


Nagle  v.  Augusta  540 
Napman  v.  People    258,  326,  347,  355 

Nash  v.  St.  Paul  383 

Nashville  v.  Althrop  630,  632 

v.  Thomas  629 
National  Bank  v.  Commonwealth  591 

Navigation  Co.  v.  Portland  605 

Naylor  v.  Galesburg  249 

Neal  v.  Railroad  Co.  470 

Neale  v.  Overseers  154 

Neall  v.  Hill-  181 

Nebraska  City  v.  Campbell  788,  789 

Neenan  v.  Smith  596,  653 

Negus'  Case  739 

Neiffer  v.  Bank  373 

Nelson  v.  Godfrey  522,  554 

v.  La  Porte  546, 607 
v.  Milford                  98,  99,  398 

Neuer  v.  Fallon  65 
Neuse  River  Co.  v.  Commissioners 

664,  659 

Nevins  v.  Peoria  799,  800 

New  Albany  v.  Meekin  625,  626 

v.  Sweeney  400,  401 

Newark  v.  Elliott  445 

v.  Funk  65 

v.  State  596 

Newberry  v.  New  York  760 

New  Boston  v.  Dumbarton  51 

Newby  v.  Piatt  County  488 

!  Newcastle,  Re  305 

Newcomb  v.  Police  Jury  400 

Newell  v.  People  85 

New  Haven  v.  Sargent  543, 544 

v.  Whitney  636 

Newing  v.  Francis  134 
New  London  v.  Brainard 

55,  732,  733,  735,  751 

v.  Montville  129 

Newman  v.  Justices  685 

v.  Scott  Co.  685 


40 


TABLE     OF     CASES     CITED. 


New  Orleans  v.  Anderson  288 

v.  Bank  594,  628 

v.  Bondu  289,  345 

v.  Costello 

273,  287,  340,  357 
v.  Eliott  594 

v.  Graihle   136,  655,  G56 
v.  Guillotte  313,  394 

v.  Insurance  Co.  64,  446 
v.  Lambert  308 

v.  Magnon  530 

v.  Michoud  634 

v.  Miller  302 

v.  Philipi  250,  253 

v.  Poutz  46,  595 

v.  Staiger  594 

v.  St.  Louis  Church 

228,  249,  306,  307,  394 

v.  South  Bank  594 

v.  Turpin  291,  594 

v.  United  States   67,  76, 

490,  493,  494,  497, 508, 

512,  514,  528,  531 

Newport  v.  Taylor     74,  497,  503,  504, 

509,  511,  529 

v.  Trustees  22 

.New  York  v.  Second  Ave.  R.  R.  Co. 

61,510,609 
New  York  Conference  v.  Clarkson 

120 

New  York  Institute  v.  How  122 

New  York,  &c.  R.  R.  Co.  v.  Marion  368 

New  York,  &c.  School,  Matter  of  246 

Nichol  v.  Boston  147,  148,  176 

v.  Gardner  69,  70 

v.  Mayor  55,  104 

v.  Nashville  104,  106 

Nichols  v.  Bridgeport 

469,  470,  472,  481,  596 

v.  Comptroller  671 

Nicholson  v.  Bradford  Union         384 

v.  Elizabeth  City  765 

v.  Railroad  Co.  566 

Nicholson  Pavement  Co.  v.  Painter 

390,  610 

Nickerson  v.  Dyer  176 

Nightingale's  Case    313,  320,  323,  324 

Niles  Township  v.  Martin  761 

Nill  v.  Jenkinson  737 

Noble  v.  Bullis  751 

Nolan  v.  New  Orleans  175 

Nolin  v.  Mayor  309 

Norris  v.  Boston  591 

v.  Litchfield  789 

v.  Mayor  126 

v.  Staps  250,  253,  346,348,353 

v.  Trustees  30,43,47 

Norristown  v.  Mayer  581,  790 


Northern  Liberties  v.  St.  John's 

Church  616, 660 

North  Hempstead  v.  Hempstead 

20,  22,  128,  431,  435,  443,  529 
North  Lebanon  v.  Arnold  762 

North  Missouri  Railroad  Co.  v. 

Maguire  44,  588,  590,  629 

North  Yarmouth  v.  Skillings 

30,  47, 128,  129 
North  Whitehall  v.  South  White- 
hall 129 
Northwood  v.  Barrington                204 
Norton  v.  Mansfield  13 
Norwich  v.  Breed                      788,  795 
v.  Hubbard               643,  660 
v.  Story                              537 
Norwich  Gas  Light  Co.  v.  Norwich 

City  Gas  Co.  30,  546,  54r* 

Nott's  Case  334 

Nowell  v.  Mayor  82 

v.  Wright  176,  772 

Noyes  v.  Ward  491,  492,  493,  494,538 
Nugent  v.  State  357 


O 


9,19 


Oakes  v.  Hill 
Oakland  v.  Carpenter 

60,  61,176,219,727,728 
v.  Whipple  626,  653 

Oakley  v.  Mayor  621 

v.  Williamsburg  543 

Oates  v.  Hudson  751 

O'Brien  Co.  v.  Brown  728 

O'Brien  v.  St.  Paul  802 

O'Conner  v.  Pittsburg 

518,  543,  555,  557,  783 

O'Docherty  v.  Archer  144 

O'Donnel  v.  City  406 

v.  Bailey  590,  629 

Oeveriche  v.  Pittsburg  106 

OTerrall  v.  Colby  676 

Ogden  v.  Raymond  176 

Ogg  v.  Lansing  772 

O'Hara  v.  Portland  30 

Ohio  v.  Commissioners  104 

v.  Gazley  653 

v.  Hibbard  653 

v.  Moffitt  716 

Ohio,  &c.  Co.  v.  Merchants'  Co.     382 

O'Kane  v.  Treat  536,  596 

Olcutt  v.  Supervisors 

24a,  105a,  415,  416&,  668 

O'Leary  v.  Sloo  600,  635 

O'Linda  v.  Lothrop         554,  581,  585 

Oliver  v.  Washington  Mills  591 

v.  Worcester 

39,  763,  764,  780,  786. 
Olney  v.  Harvey         52,  116,  127,  686. 


TABLE     OF     CASES     CITED. 


41 


Olney  v.  Pearce  154 

v.  Wickes  176 

O'Neill  v.  Police  Jury  80 

Onstott  v.  Murray  499,  500,  501 

Ontario  Bank  v.  Bunnell         613,  629 
Oregon  v.  Pyle  168 

Orr  v.  Baker  616 

Orton  v.  State  399 

Osborn  v.  Bank  of  United  States 

18,  591 

v.  Danvers  751 

v.  Mobile  590 

v.  Tunis  450 

Osgood  v.  Green  101 

v.  Manhattan  Co.  242 

Oswald  v.  Genet  504 

Oswego  v.  Oswego  Canal  Co.         505 

Ottawa  v.  County  54 

v.  Macy  642 

v.  People 

28,  62,  666,  669,  673,  695 

v.  Railroad  Co.    642,  643,  740 

v.  Spencer  481,  603,  616 

v.  Trustees  616 

v.  Walker  526 

Overseers  v.  Kelly  129 

v.  Mayor  381 

v.  Overseers  129 

v.  Sears  9,  19,  21,  158 

v.  Supervisors        372,  431 

Owen  v.  Smith  113,  114 

Owings  v.  Speed  51,  241 

Owners  v.  Albany  463,  505 


P. 


Pacific  Railroad  Co.  v.  Chrystal    4 

v.Lincoln  Co.  18 

v.  Governor  671 

Pack  v.  Mavor  792,  793 

Packard  v.  New  Bedford  788 

Packet  Co.  v.  Atlee  67,  70 

Paddleford  v.  Mayor  630 

Page  v.  Baltimore  67 

v.  Fazakerly  323 

v.  Frankfort  98 

v.  Graham  592 

v.  Hardin  174,  188 

v.  Heinburg  432,  436 

v.  State  298 

v.  St.  Louis  58,  616 

Paine,  Ex  parte  683 

v.  Commissioners  529 

v.  Spratley 

27,  55,  616,  656,  658 
Painter  v.  Pittsburg  791 

Pallister  v.  Mayor  82 

Palmer  v.  Andover  788 


Palmer  v.  Carroll  175 

v.  Hicks  124 

v.  Mayor  172, 173 

v.  Stump  401 

Palmyra  v.  Morton 

290,  471,  481,  596,  642,  643,  660 

Pangborn  v.  Westlake  491 

Paris  v.  Graham  253 

v.  People  176,  747 

Parish  v.  Jacobs  49C 

Parker  v.  Commonwealth  23 

v.  Lowell  797 

v.  Macon  790 

v.  Mason  794 

Parks  v.  Boston  58,  40 17 

470,  476,  739,  740,  741,  742 

v.  Newburyport  799 

Parnaby  v.  Canal  Co.  761 
Parr  v.  Attorney  General 

141,  368,  730 

Parrott  v.  Eyre  176 

Parry  v.  Berry  211 

Parsons  v.  Brainard  209 

v.  Goshen  13,  381 

v.  Trustees  505,  522 

Passenger,  &c.  Co.  v.  Birmingham  570 

Paston  v.  Urber  183 

Patch  v.  Covington  774 

Paterson  Gas  Light  Co.  v.  Brady  549 

Patrick  v.  Commissioners  457 

Patterson  v.  Bowes  147,  730 

v.  Society 

23,  24,  30,  125,  616 

Pattison  v.  Supervisors  90 

Patton  v.  Springfield  645 

Paul  v.  Kenosha  384,  750 

v.  Newark  488 

v.  Virginia  591 

Paulet  v.  Clark  40,  491,  494 

Paxson  v.  Sweet  261,  345,  637 

Payne  v.  Brecon  393 

v.  Mayor  82 

v.  Tread  well  512 

Peabody  v.  Flint  210 

Peace  v.  Augusta  630 

Peachy  v.  Somerset  286 

Pearce  v.  Milwaukee  7S3 

v.  Railroad  Co.  74'J 

Pease  v.  Cornish  73,  410,  413 

v.  Dayton  789 

Peck  v.  Austin  31^ 

v.  Ellsworth  786 

v.  Fox  Lake  732 

v.  Lockwood  259 

v.  Prov.  &c.  Co.  492 

v.  Smitli  524,  544 

Pedrick  v.  Bailey  147.  253,  528 

Pees  v.  Leeds  704 


42 


TABLE     OF     CASES     CITED. 


Pegram  v.  Commissioners  712 

v.  County  685 

Pekin  v.  Newell  767 

v.  Reynolds  414 

v.  Smelzell  298,  299 

Pella  v.  Scholte 

494,  501,  510,  529,  531 
Pendegast  v.  Peru  268 

Pender  v.  King  159 

Pendleton  v.  Bank  of  Kentucky     121 
v.  Perkins  65 

Pendleton  County  v.  Amy 

418,  420,  4226 
Peninsular  R.  R.  Co.  v.  Howard  482 
Pennington  v.  Taniere  380,  449 

Pennsylvania  District  Election       136 
Pennsylvania  Hall,  Re  366,  TOO 

Pennsylvania  R.R.Co.v.  Heister     488 
v.  Philadelphia 
105,  106,  108 
Pennoyer  v.  Detroit  799 

Penny  Pot  Landing  Case 

504,  511,  530 

Penobscot  Boom  Corp.  v.  Lawsou   30 

Penrose  v.  Taniere  373 

Pentz  v.  ^Etna  Insurance  Co.  759 

People  v.  Adams  229,  241,  305 

v.  Albany  77,  780 

v.  Assessors  14 

v.  Attorney  General  695 

v.  Auditors 

v.  Bacon 

v.  Baker 

v.  Bank 

v.  Bartlett 

v.  Batchelor 

222,  223,  224,  225,  668,  749 
v.  Bearfield  182,  191,  193 

v.  Bedell  146,  151 

v.  Benevolent  Society         192 
v.  Benson 
v.  Bissell 

v.  Board  of  Trade 
v.  Bond 
v.  Brenham 
v.  Brennan     82,  668,  669,  685 
v.  Brighton  469.  472,  476 

v.  Brooklyn  44,  473,  481,  587, 
596,  603,  616,  636,  645,  667, 
668,  669,  695 
V.  Canty  592,  603 

v.  Carpenter  124,  210, 

508,  520,  521,  558,  669,  718 
v.  Carrique  166 

v.  Cassidy  628 

v.  Chicago         9,  43,  592,  694 
v.  Cicotte  138,  139,  144 

v.  Clark  County  686 


People  v.  Coleman  599 

v.  Collins  662,   668,  695 

v.  Commissioners  706 

v.  Comptroller  181,  188 

v.  Conover  151,  726 

v.  Contracting  Board  669 

v.  Cook  136,  210 

v.  Coon  42.  106,  398 

Cooper  579 

Cornell  240 

County  406 

Covert  741,  743 

Croton  Aqueduct  Board 

392 
Cunningham  521,  581 

Davidson  70 

Detroit     302,  344,  679,  680 
Doe  614 

Draper  9,  24,  34,  127,  140, 
210,  718 
Dutcher  423 

Edmunds  667,  668 

Everett  708 

Fairbury  110,  136,  158,  675 
Farnham  51,  125 

Finger  706 

Flagg      385,  387,  538,  596, 
668,  685 


170 
703 

694,  705; 
55,  726: 

160,  214 


550 
671 
181 
41 
136 


v.  Fletcher 

v.  Galesburg 

v.  Gilbert 

v.  Gray 

v.  Halsey 

v.  Hatch 

v.  Harris 

v.  Hartwell 

v.  Hawley 

v.  Hayden 

v.  Head 

v.  Higgins 

v.  Hill 

v.  Hilliard 

v.  Hillsdale,  &c.  Co. 

v.  Holden 

v.  Holmes 

v.  Hurlburt 

9,  %,  24,  28,  33,  39,  40,  93 
v.  Insurance  Co.  210 

v.  Jackson  302,  495,  520 

v.  Johnson  272,  344 

v.  Johr  155 

v.  Jones  491,  505 

v.  Judge  482,  483 

v.  Kerr  43,  496,  525,  555, 

556,  570,  574 
v.  Kilduff  141,  680,  682,  683 
v.  Kimball  483 

v.  Kip  680 


680 

714 

529 

406 

695 

695 

92 

722,  723 

93 

480 

680,  684,  694 

183 

30,  36,  151 

680,  684,  694 

721 

715 

155 


TABLE     OF     CASES     CITED. 


43 


People  v. 


v 

V 

V 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V, 

V, 
V 
V 


Knight  136  People  v. 

Law  556 

Lawrence  98,  691 

Lewis  175 

Logan  County  423 

Loomis  137, 726 

Lounds  723 

Love  121 

Lowber  315,  7306 

Mahany 

27,  28,  33,  34,  139,  168 
Marsh  668 

Martin  207,  225 

Matteson  137,  680 

Mauran  436 

Maynard  51 

Mayor  151,  346,  368,  470, 
481,  593,  596,  598,  601,  616, 
666,  667,  668,  7306,  740, 
741,  742 
McCreery  587,  599,  615,  616 
McKinney  176 

Mead        411,  419,  420,  426 
Medical  Society  181 

Mellen  28 

Metropolitan  Police  Board 
134,  149,  163,  683,  706 
Miller  174 

Miner  7306 

Mitchell  104,  106,  424 

Morrell  24,  129,  168 

Morris  4,  95,  23,  30,  38,  52 
Mott  240 

Nearing  463 

New  York  402,  680 

Niles  625 

Nyland  357 

Oakland  Bank  723 

Ogdensburgh  625,  629,740 


Onandaga  44 

Pacheco  695 

Pearson  707 

Pease  .  144 

Phillips  134 

Police  Board  740 

Police  Justice  366 

Pontiac  Bank  723 

Porter  165 

Potter  50 

Power  35 

Pratt  694 

President  23,  51 

Prison  Inspectors  695 
Railroad  Co. 

55,  469,  570,  599,  719,  7306 

Ransom  667,  693 

Rector  208 

Reynolds  23 


v. 

V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V, 
V. 
V, 
V. 
V 
V 
V 


Richardson 

713,  716,  719,  726 
Rochester  225,  639,  652,  742 
Runkle 

121,  158,   159,  160,  214 

Salem  105,  1056,  415 

Salomon     23,  43,  592,  664, 

666,  672,  676 

San  Francisco 

265,  374,  695,  704 
Sargent  309 

Scrugham  680,  682 

Seaman  137,  716 

Seymour  653,  695,  707 

Slaughter  359,  361,  394 
Smith  423,  465,  467,  740 
Stevens 

136,  160,  667,  680,  682 

Stilwell  476 

St.  Louis  312 

Stout  23,  398,  732 

Supervisors        83,  90,  169, 

172,  381,  398,  420,  424, 

527,  665,  667,  668,  669, 

685,  689,  690,  694,  707, 

712,  740 

Sweeting  716,  723 

Swift  385 

Tazwell  County 

108,  414,  423 


Thompson 

Throop 

Thurber 

Tieman 

Tracy 

Treasurer 

Turner 

University  Regents 

Utica  Ins.  Co. 


668,  713,  724 
253 


291 
159 
695 
696 
334 
695 
713 
682, 716 


Vail 
Vanderbilt 

70,  71,  311,  520,  522 


Van  Slyck 

Walker 

Warfield 

Warren 

Weant 

Wetherell 

Wharf  Co. 

Whitcourt 

White 

Whyler 

Wiant 

Wilson 

Winnehamrner 

Wood 

Works 


716,  726 

240 

23 

176 

23 

143,  161,  722 

72,  433 

721 

214,  668 

596,  616 

672 

357 

757 

41,  176 

289 


Wren  23.30,  109,  110 


44 


TABLE     OF     CASES     CITED. 


People  v.  Yates  699 

People's   Railroad  v.  Memphis  Rail- 
road 61,  373,  558,  567 
Peoria  v.  Calhoun  260,  262 
v.  Johnson  501 
v.  Kidder  481 
Perdue  v.  Corporation     799,  800,  801 
v.  Ellis         245,  253,  279,  299 
Perin  v.  Carey 

431,  436,  437,  438,  440,  443 

Perkins  v.  Insurance  Co.  383 

v.  Weston  289 

Perley  v.  Chandler  496 

v.  Georgetown  770 

Perin   v.  Railroad  Co.  504,  510 

Perry  v.  Dover  204 

v.  Ontario  384 

v.  Superior  City  381 

v.  Tyner  221 

v.  Worcester  781,  797,  802 

Pesterfield  v.  Vickers      149,  253,  773 

Peterborough  v.  Lancaster  204 

Peters  v.  State  762 

Petersburgh  v.  Mappin  398 

v.  Metzker   55,  273,  302 

Peterson  v.  Mayor     92,  315,  383,  385, 

387,  388,  432 

Petrie  v.  Doe  221 

Pettigrew  v.  Evansville  781.  799 

Petty  v.  Tooker  134 

Peyton  v.  Hospital  242 

Pfau  v.  Reynolds  790,  794 

Phebe,  The  72 

Philadelphia  v.  Collins  779 

v.  Cooke  660,  751 

v.  Dickinson  479 

v.  Dyer  479 

v.  Eastwick  596 

v.  Field 

30,  38,  43,  44,  588,  608 

v.  Flanigan       9,  87, 381 

v.  Fox  37,  47,  437 

v.  Given  169,  174 

v.  Greble  659 

v.  Hox  30 

v.  Lombard  570 

v.  Railroad  Co.  445,  514, 

529,  530,  538,  555, 

557,  558,  570,  596 

v.  Tryon  596,  647 

v.  Wistar  660 

Phillips  v.  Albany  104 

v.  Allen  279,  284,  325 

v.  Bloomington  80 

v.  Coffee  130 

v.  Commonwealth  747 

v.  Mayor  168 

v.  Veazie  796 


Phillips  v.  Wickham      109,  159,  253 

Physicians  v.  Salman  117 

Pickering  v.  Shotwell  437 
Piemental  v.  San  Francisco 

219,  230,  373,  383,  387,  447,  750 

Pierce  v.  Bartram      288,  289,  313,  319 

v.  Boston  653 

v.  Carpenter  124,  129 

v.  Richardson       176,  231,  232 

v.  Somerworth  121 

Pieri  v.  Shieldsboro  728 

Pike  v.  Middletown  98,  99 

Pike  County  v.  State  695 

Pilie  v.  New  Orleans  173 

Pillsbury  v.  Springfield  473 

Pirn  v.  Ontario  384 

Piper  v.  Chappel  275,  341,  348 

v.  Singer  590 

Pitts  v.  BorAer  716 

Pittsburg  v.  Craft  121 

v.  Grier  77,  778 

v.  Scott  520 

v.  Walter  639 

v.  Wood        "  596 

Pitt  son  v.  Clark  13 

Placerville  v.  Wilcox  620 

Plank  Road  Co.  v.  Husted  61 

Plant  v.  Railroad  Co.  562 

Player  v.  Jenkins  313 

Plimpton  v.  Somerset        39,  344,  361 

Plum  v.  Canal  Co.  543 

Plunkett  v.  Crawford  129 

Plymouth  v.  Jackson  30,  47,  127 

v.  Painter  160 

v.  Pettijohn  289,  591 

Police  Commissioners  v.  Louisville 

33,  34,  149 

Police  Jury  v.  Britton  407 

v.  Shreveport  31 

v.  Succession  of  Mc- 

Donough  104 

v.  Villaviabo  289 

Folk  v.  Plummer  14 

Pollard  v.  Hagan  67 

v.  Woburn  789 

Pollock  v.  Laurence  County 

686,  687,  705 

Pomeroy  v.  Mills      496,  499,  508,  524 

v.  Railrc  ad  Co.  557,  573 

Pomeroy  Salt  Co.  v.  Davis  625 

Pondv.  Negus  228,  249 

Pool  v.  Bentley  449 

v.  Boston  91,  173 

Pope  v.  Commissioners  537 

v.  Headen  658 

v.  Union  503,  505 

Poppen  v.  Holmes  284 

Porter  v.  Blakely  123 


TABLE     OF     CASES     CITED. 


45 


Porter  v.  Rail]  )ad  Co. 


I  Prigden  v.  Bannernian 


475 


130,  555,  557, 

562, 

564 

Primm  v.  Belleville 

Port  Gibson  v.  Moore 

114 

590,  592,  603, 

620, 

621 

Portland  v.  Bangor 

234 

Prindle  v.  Fletcher 

788 

v.  O'Neill 

291, 

632 

Pritchard  v.  Keefer 

176 

v.  Richardson 

795 

v.  People 

214 

v.  Whittle 

503, 

510 

v.  Stevens 

101 

Port  "Wardens  v.  Pratt 

67 

Pritz,  Ex  parte 

26 

v.  Ship 

67 

Proprietors  v.  Horton 

2S 

,  51 

Portsmouth,  &c.  Co.  v.  Watson 

50 

v.  Lowell 

802 

Post  v.  Pearsall 

494, 

510 

v.  Slack 

239 

Postmaster  General  v.  Rice 

155 

Protzman  v.  Railroad  Co. 

Potter  v.  Luther 

176 

525,  556, 

564, 

574 

v.  Menasha 

309, 

522 

Providence  v.  Clapp       786, 

788, 

789 

Potts  v.  Henderson 

176 

Pruyn  v.  Milwaukee 

414 

Pottsville  v.  Curry 

743 

Pulaski  Co.  v.  Lincoln 

221, 

412 

Poulters  Co.  v.  Phillips 

261, 

353 

Pumpelly  v.  Green  Bay  Co. 

781, 

784 

Poultney  v.  Wells                43,  47, 

383 

Purdy  v.  People 

2£ 

,  30 

Pow  v.  Becker 

150 

Pursley  v.  Hays 

458 

Powel  v.  Madison 

626 

Putnam  v.  Johnson 

134 

v.  St.  Joseph 

635 

Putnam  County  v.  Allen  County 

685 

Powers,  Re                     , 

366 

v.  Sanford 

751 

Q. 

v.  Superior  Court 

104 

v.  Wood  County 

126 

Queen  v.  Bartels 

134 

Poweshiek  County  v.  Ross 

238 

v.  Board 

785 

Powles  v.  Page 

242 

v.  Cascar 

134 

Prather  v.  Lexington 

760 

v.  Charlesworth    546 

,  555 

568 

v.  New  Orleans 

71 

v.  Gas  Company 

555, 

568 

Pratt  v.  State 

124 

v.  Governors 

174, 

188 

v.  Swanton 

204, 

386 

v.  Halifax  Road  Trustees 

694 

Pray  v.  Jersey  City 

789 

v.  Justices 

136 

v.  Northern  Liberties 

616 

v.  Pomfret 

190 

Preachers'  Aid  Soc. 

122 

v.  Saddlers'  Co. 

192 

Preble  v.  Portland 

227, 

476 

Quincy  v.  Ballance 

234, 

344 

Prell  v.  McDonald      50,  147 

149 

347 

v.  Warfield 

414 

Presbyterian  Church  v.  Mayor 

61 

Quinn  v.  Paterson 

537 

Prescott  v.  Duquesne 

77 

664 

v.  Gonser 

668 

R. 

President  v.  Desouchett 

789 

v.  Holland 

344 

Raab  v.  Maryland 

124 

v.  Indianapolis 

Rabassa  v.  Mayor 

591, 

621 

446,  496,  5 

512 

Radcliff  v.  Brooklyn 

781 

783 

v.  Myers 

121 

Radway  v.  Briggs 

77 

v.  O'Malley 

232, 

263 

Ragan  v.  McCoy 

491, 

494 

v.  Thomson 

110 

Ragatz  v.  Dubuque 

476, 

483 

Preston  v.  Bacon 

173 

Ragnet  v.  Wade 

176 

v.  Boston 

751 

Railroad  Co.  v.  Adams  555, 

562, 

570 

v.  Nevastota 

503 

v.  Alexandria 

Prettyman  v.  Supervisors 

90 

104 

54,  605,  612, 

616, 

629 

v.  Tazwell  County 

84 

v.  Applegate 

Price  v.  Church 

515 

556,  558 

570 

574 

v.  Commissioners 

685 

v.  Ball  ' 

48S 

v.  Harned 

598 

v.  Baltimore 

v.  Thomson 

60,  246 

,559 

570 

491,  507,  510 

512, 

522 

v.  Banker 

491 

v  Railroad  Co. 

230 

v.  Blanchard 

734, 

737 

Priestly  v.  Foulds 

109 

*v.  Brooklyn 

558 

46 


TABLE     OF     CASES     CITED. 


Railroad  Co.  v.  Brown 

v.  Biownell  518 

v.  Buchanan  County 

62,  423 
v.  Buffalo  32G,  554 

v.  Charlestown  628 

v.  Chenoa     51,  538,  565 
v.  Chicago  618 

v.  Claghorn 
v.  Cleino 
v.  Clute 
v.  Collett 

v.  Commissioners  23, 104 
v.  Connelly  27, 480,  589, 
593,  596,  629,  638 
v.  Dailey  555 

v.  Dalby  17 

v.  Davidson  County     23 
v.  Davis  456 

v.  Decatur  560,  565 


3n 

738 
629 

488 


v.  Deitz  572 

v.  Doughty  487,  488 
v.  Duquesne  537,  579 
v.  Elevator  Co.  496,  524 
v.  Evansville  58,  83,  84, 
106,  414,  420,  423 
v.  Galena  537, 565 

v.  Gladmon        572,  789 
v.  Greely  465 

v.  Gregory  28 

v.  Hartford  108 

v.  Heath  483 

v.  Hunter  488 

v.  Ingles  176 

v.  Kennedy  454 

v.  Kerr  558,  570 

v.  Lafayette  629 

v.  Lawrenceburgh     559 
v.  Leavenworth 

518,  558,  559,  570,  574 
v.  Marion  County  60,424 
v.  Marvin  368 

v.  Mayor  558 

v.  Memphis  567,568,570 
v.  Miller  483 

v.  Morgan  County 

625, 629 
v.  Moye 
v.  Mt.  Pleasant  635,  738 
v.  Municipality 

64, 555,  558 
v.  Napa  County  669 

v.  Nesbit  475 

v.  Newark  559 

v.  New  York 

58,  61,  558,  570 
v.  Norwalk  802 

v.  Oakes  480 


558  Railroad  Co.  v.  O'Daily 

525,  564,  570,  574 
v.  Otoe  County  105a,106 
v.  Owings  476 

v.  Payne  560 

v.  Philadelphia 

518,  570,  571 
v.  Platte  County  62,423 
v.  Plumas  County 

24,  51,  696 

v.  Porter  470 

v.  Prudden  522 

v.  Quigley  766 

v.  R.  R.  Co.  454,558,559, 

570,  572,  573,  574,  578 

Reed       558,  562,  564 

Schurmier        70, 497 

Shields 

522,  558,  560,  561 

Smith  480 

Spearman       126, 596, 

616,  629,  634 

State       629,  665,  666, 

667, 673,  746 


v.  Steiner 
v.  Supervisors 
v.  Veeder 
v.  Wakefield 
v.  Whipple 
v.  Winthrop 
v.  Wright 
Railway  Co.   v.  Howard 


555 
594 
408 
570 
740 
71,74 
628,  629 
738 
v.  Philadelphia  556 

Raleigh  v.  Dougherty  302 

v.  Sorrell  211,  323, 324 

Ramsey  v.  Riley  176, 177 

Ramshey,  Ex  parte  174,  188 

Rand  v.  Townsend  ,     476 

v.  Wilder  204,  206 

Randall  v.  Railroad  Co.  788 

v.  Van  Vechten 

377,  380,  383,  385,  407,  538 
Rankin  v.  Beaird  32 

Ranlett  v.  Leavenworth  415 

Ransom  v.  Boal  445,  512 

v.  New  York  764 

Rappo  v.  Moore  788, 789,  790 

Rathbun  v.  Acker     471,  605,  610,  642 
Ray  v.  Lynes  780 

v.  Manchester  788 

Raymond  v.  Lowell  788,  789 

Reading  v.  Commonwealth 

39,  43,  518,  519,  520,  695 

v.  Keppleman  52,  783 

Ready  v.  Mayor  772 

Rector  v.  Hart  499 

v.  State  363 

Red  v.  Augusta  228 


TABLE     OF     CASES     CITED. 


47 


Reddall  v.  Bryan 

462,476 

Regina  v.  Slatter 

678 

Reddish  v.  Amelia 

18,79 

v.  Southampton 

705 

Redfield  v.  Railroad  Co. 

524 

v.  Stamford 

699 

Reed  v.  Belfast 

763,  786,789 

v.  St.  Mary's 

698 

v.  Northfield 

505,788,789 

v.  Sutton 

183 

v.  People 

289, 290 

v.  Tart 

137 

v.  Toledo 

471 

v.  Telegraph  Co. 

522 

v.  Tyler 

660 

v.  Tewksbury 

135 

Reea  v.  Watertown 

693 

v.  Thomas 

203 

Reeside  v.  Walker 

670 

v.  Train                 546 

555, 568 

Reeves  v.  Toronto 

778,  801 

v.  Treasury 

190 

v.  Treasurer  Wood  County 

v.  Turnpike  Roads 

673 

463,  593,  617 

v.  Wells 

356 

Regents  of  University  v. 

Williams 

v.  Whipp 

203 

31,43,109 

163,164,216 

v.  Wood 

326 

Regina  v.  Anderson 

722 

v.  York 

9&,  197 

v.  Archbishop 

695 

Reichard  v.  Warren  County 

386 

v.  Avery 

137 

Reiff  v.  Conner 

228, 249 

v.  Bewdley 

109,116 

Reilly  v.  Chouquette 

529 

v.  Blizard 

722 

v.  Philadelphia 

v.  Boucher 

16 

387, 400,  401, 

640,  772 

v.  Bradley 

137 

Reiman  v.  Shepard 

626 

v.  Bristol  Dock  Co 

Reinboth  v.  Pittsburg 

83 

v.  Canal  Co. 

668,  694 

Reitchbaugh  v.  Railroad  Co 

470 

v.  Chapman 

704 

Remington  v.  Millard 

499,  505 

v.  Chester 

716 

Remy  v.  Municipality 

433 

v.  Conyers 

699 

Renthrop  v.  Bourg 

514 

v.  Cottle 

537 

Reock  v.  Newark             400 

402,  784 

v.  Deighton 

137 

Requa  v.  Rochester  505,  579, 

789,  790 

v.  Derby 

135,  678,  716 

Respublica  v.  Caldwell 

311 

v.  Derbyshire 

579 

v.  Dallas 

166 

v.  Dock  Co. 

669 

v.  Duquet 

338 

v.  Eye 

703,  712 

v.  Sparhawk 

756 

v.  Gloucester 

163 

Rex  v.  Abingdon 

v.  Greene 

772 

674,  699,  700, 

704,  722 

v.  Grimshaw 

203 

v.  Amery                    109, 

113,  125 

v.  Hammond 

137 

v.  Andover 

188,  190 

v.  Heathcote 

667,  710,  712 

v.  Ashwell 

249,  275 

v.  Hiorns 

135,  678 

v.  Atkyns 

156, 198 

v.  Hoyle 

137 

v,  Atwood 

354 

v.  Ipswich 

123 

v.  Axbridge 

192,  683 

v.  Lane 

163 

v.  Babb 

240,  684 

v.  Ledyard 

135, 699 

v.  Bailiffs 

62,  669 

v.  Leeds 

674,  678,  716 

v.  Bank  of  England 

668,  683 

v.  Litchfield 

82 

v.  Bankes 

674 

v.  Lloyd 

718 

v.  Barber  Surgeons 

251 

v.  Megowan 

156 

v.  Barker 

186,  662 

v.  Morton 

163 

v.  Barnard 

145 

v.  Newberry 

179,189,190 

v.  Bedford 

677,  713 

v.  Oxford 

183 

v.  Benchers  oc  Grey;s  Inn        667 

v.  Paramore 

%,  197 

v.  Bellringei 

198,  199 

v.  Pembroke 

674 

v.  Bond 

165 

v.  Railway  Co. 

698, 745 

v.  Bcwer 

162,  199 

v.  Registrar  Stock  Co.        120 

v.  BridpHLaja 

240 

v.  Ricketts 

183 

v.  Bristol 

683 

v.  Rogers 

190 

v.  Brown 

722 

v.  Rowley 

137 

v.  Buller 

684 

v.  Sheffield  Gas  Co.             546 

v.  Bumstead 

134,  146 

48 


TABLE     OF     CASES     CITED. 


Rex  v.  Cambridge 

134,  674,  680,  682,  700,  705 
v.  Campion  683 

v.  Canal  Co.  668,  694 

v.  Carlisle  189,  521,  581, 

v.  Carinathen  192 

v.  Carter  198,  199 

v.  Chalke  178,  179,  189,  190,191, 
192,  193,  194 


Chester 

Chitty 

Clapham 

Clarke 

Colchester 

Commissioners 

Company 

Conyers 

Cottrell 

Coventry 

Croke 

Cross 

Cusack 

Dawes 

Dean 

Debenham 


5n,  62,  719 

134,  144 
239 
704 

674,  680 
868,  662,  673 
354 
698 
313 
188 
211 

521,  581 
719 

199,  722 
153 
241 


Rex  v.  Hiorns  674 

v.  Hodge  722 

v.  Hopkins  684 

v.  Hughes  163,  165 

v.  Hungerford  162 
v.  Ingram 

v.  Inhabitants  739 
v.  Ipswich 

190, 192, 193,  239, 683,  702, 708 


Derby  189,  193,  674,  698,  704| 
Devonshire  199 

Doncaster    157,  179,  180,  188,! 
190,  192,  194,  202,  224 


Dublin 

Durham 

Earle 

Egerly 

Everett 

Exeter 

Feversham 

Fishermen 

Fowey 

Frost 

Gaborian 

Gloucester 

Godwin 

Greene 

Griffiths 

Grimes 

Gro6venor 

Gvvyn 

Harris 

Harrison 

Hastings 

Head 

Headley 

Heath 

Heaven 

Hebden 

Heieford 

Hertford 

HU1 


698 
157 
157 
521 
668 

134,  704 

180,  192,  193 

354 

704,  710 
695 
198 
700 
165 
684 
192 

192,  202 

109,  162 

241 

190,  192,-  203,  722 

252,  353 
62,  356,  669 
211 
199 
134 
179 
199 
699,  700,  704 
210 
202 


Jones 

Kent 

Kingston 

Lancashire 

Lane 

Langhorne 

Leake 

Leeds 

Leicester 

Leyland 

Liverpool 


581 
109 


694 
163,  190 
202 
505 
137 
192 
162,  674,  677 
179,  189,  190,  192, 
193,  202,  224,  674,  796 
London  8,  190 

Lord  Gordon  241 

Lucas  240,  684 

Lyme  179,  188,  193 

Maidstone  253 

Mallett  134 

Margate  Pier  Co.  694 

Marshall  166 

Marten  722 

May  199,  202 

Mayor 

134,  174,  188,  214,  683,  713,  745 
Miller  109,  199,  251 

Monday  134,  198,  199 

Moore  581 

Morely  368,  742 

Morris  109,  198,  199 

Mothersell  231,  241 

Newbury  699 

Newcastle  240,  684 

Nicholson  109,  713 

Norwich 

674, -699,  702,  705,  707 
Nottingham  239,  665,  669 

Ogden  722 

Osbourne  109 

Oxford 

188, 190,  202,674,  694,  699,  700 
Oxfordshire  745,  747 

Oxon  683 

Parker  662 

Parry  722 

Passuiore 

109,  110,  113,  116,  125,  159 
Pateman  165 

Patterson  163,  164,  165 

Payne  163,  722 


TABLE     OF     CASES     CITED. 


49 


Rexv. 

v. 

V. 
V. 
V. 

y. 
v. 

v. 

V. 
T. 
V. 
V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
T. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V, 

T, 

V. 

T. 

V, 

T, 


Phillips  156 

Pigram  239 

Plymouth  700 

Pornfret  705 

Ponsonby  179,  722 

Poole  159 

Powell  222 

Purnell  240 

Quavle  722 

Radford  674 

Railroad  Co.  745,  747 

Railway  Co.  666 
Richardson 
178, 179, 180, 189,  190, 192, 193 


Ripon 
Rogers 
Rowe 
Salop 
Salway 
Sargeant 
Saukey 
Saunders 
Scarborough 
Shelly 
Shrewsbury 
Slatford 
Slythe 
Smart 
Smith 
Spencer 
Stewart 
St.  George 
St.  Martin 
Taylor 
Theodorick 
Thetford 
Thornton 
Tidderly 
Tizzard 
Toneboy 
Tooley 
Totness 
Tower 
Tregony 
Trelawney 
Trevenon 
Truro 
Varls 
Ward 
Wardroper 
Warlow 
Watson 
,  Wells 
,  West  Looe 
West  Riding 
.  Westwood 
.  Weymouth 
,  Whitwall 


163 
356 
192 
/C9 
57 
722 
437 
109,  113,  718 
674 


Rexv.  Wigan 
v.  Wildman 
v.  Williams 
v.  Willis 
v.  Wilton 
v.  Winchester 
v.  Woodrow 
v.  Yates 
v.  York 
v.  Yorkshire 
Rexford  v.  Knight 
Reynolds  v.  Albany 
v.  Baldwin 


704 

239 

210,  668,  714,  722 

698 

192 

137,  674,  678 

162,  674 

189 

674,  676,  705 

667 

•    479,  480 

92 


31, 147,  210,  680, 
713,  714 
v.  Commissioners 

432,  436,  507,  510 
204 


v.  New  Salem 
v.  Schweinefus  229 

v.  Shreveport  88,  783 

v.  Stark  County        43,  445 
v.  Taylor  668,  685 

Rhines  v.  Clark  344,  361,  366 

240,  684 1  Rhodes  v.  Cincinnati  783 
192,  202               v.  Cleveland  780 

683  v.  Dunbar  308 
722  Rice  v.  Keokuk  90 
198           v.  Osgood                                 510 

241,  699,  700,  702  v.  Smith  676,  784 

134,  146  v.  State  302,  366 

109  Richards  v.  Daggett  128,  129 

796  v.  Enfield  788 

674  Richardson  v.  Baltimore        476,  728 

179,  180,  190,  191  v.  Boston  74,  433 

202,  204  v.  Scott  377 

241,  674  v.  Turnpike  Co.   579,  788 
156  Richland  County  v.  Lawrence  County 

163,  179  30,  35,  40,  128 

166  Richmond  v.  Daniel  605,  629 

192  v.  Judah  751 

701  v.  Long 

189  39,  752,  764,  773,  774 

684  v.  Railroad  Co. 
109,  674,  701  30,  35,  590,  616,  629 

165  v.  Smith  271 

722  v.  State  ■  442 

189,  674  Richmond  Mayoralty  Case        33,  357 

198  Riddle  v.  Bedford  154 

520,  581  v.  Proprietor  of  Locks 

722  761,  762,  763 

722  Rideout  v.  School  District  204 

176  Riggs  v.  Board  of  Education 
189,  190  508,  527 

189,  703  v.  Johnson  County 

579  416,  686,  688 

211,  326  Riley  v.  Rochester  434,  435 

134. 146  Rindge  v.  Colrain  789 

162,  722  Ring  v.  Johnson  County         132,  405 


60 


TABLE  OF  CASES  CITED. 


Ring  v.  Schoenberger  508,  530 

Ripon  v.  Bittel  789 

v.  School  District  751 

Risley  v.  St.  Louis  471,  642,  643,  650 
Road  Case  228,  249,  537 

Robbins  v.  Chicago  793 

v.  Countv  Court  414 

v.  Railroad  Co.  487,  488 


Roberts  v.  Carr 

v.  Chicago 
v.  Easton 
v.  Mayor 
v.  Ogle 
Robertson  v.  Rockford 
Robie  v.  Sedgwick 
Robins,  Ex  parte 
Robinson  v.  Bidwell 

v.  City  Council 

v.  Lane 

v.  Mayor 

v.  Railroad  Co. 


501 
783 
571 
732 
263,  308,  335  J 
104 


v. 

v. 

Rochester  v 

v, 


51 1 

666! 

104 

751 

114 

297 

564 

Robinson  488 

St.  Louis  94,  377 

Collins  780 

Hood  319 

v.  Lee  118 

v.  Pettinger  320 

Rochester   White  Lead   Co.   v. 

Rochester  776,  777,  780,  797 

Roffignac  St.,  Matter  of         473,  474 
Rogan  v.  "Watertown 

28,  104,  105,  398 

Rogers,  Ex  parte      199,  221,  224.  695 

v.  Burlington       83,  84,  i05a, 

106,  393,  407,  416,  4166, 

418,  420 

v.  Jones  240,  263,  264, 

302,  323,  354,  418,  420 

v.  Lee  County  414 

Roll  v.  Augusta  563,  783,  799 

522 
97,  371 
479 
783 
629 
123 
728 
109 
279 
423 
238,  374,  79 


Rowe  v.  Leeds 
Rowell  v.  Lowell 

v.  Montville 

v.  Williams    789,  791. 
Roxbury  v.  Railroad  Co. 
Ruby  v.  Abysm.  Society  . 
Rudolphe  v.  New  Orleans 
Ruggles  v.  Collier 

v.  Nantucket 
Ruhlman  v.  Commonwealth. 
Rumsey  v.  Campton 
Rundle  v.  Baltimore 
Runyon  v.  Bordine 
Ruppert  v.  Baltimore 
Rusch  v.  Davenport 
Rush  v.  Des  Moines  County 
Russ  v.  Mayor 
Russell  v.  Burlington 

v.  Chicago 

v.  Devon  County 

v.  New  York 

757,  759, 

v.  Steuben 

v.  The  Swift 
Rutherford  v.  Taylor 

491,  508, 
Rutter  v.  Chapman 
Ryan  v.  Copes 

v.  County 
Ryder  v.  Railroad  Co. 


784 

788,  789 

505 

794,  796 

560,  796 

386 

775 

60 

60,  579 

476 

134 

743 

520,  521 

401 

789 

9 

256 

783 

157 

762,  789 

760,  772 

789 

72 

512,  522 

16 

308 

655 

51 


S. 


Roman  v.  Strauss 
Rome  v.  Cabot 

v.  Jenkins 

v.  Omberg 
Rome  R.  R.  Co.  v.  Rome 
Romeo  v.  Chapman 
Roosevelt  v.  Draper 
Rose  v.  Turnpike  Co. 
Rosebaugh  v.  Saffin 
Ross  v.  Curtis 
v.  Madison 


v.  St.  Charles  505,  796 

Rossie  v.  Boston  433 

Rounds  v.  Mansfield  101,  176 

v.  Mumford  353,  781,  783 

v.  Stetson  101 
Rowan  v.  Portland    503,  522,  529,  531 

Rowe  v.  Addison  777 


Sacramento  v.  oroe&er  599,  632 

v.  Khk  374,  375 

v.  bt^axes  76 

Sadler  v.  Evans  174 

Salem  v.  Railroad  Co.  308 

Salem  Mill  Dam  v.  Ropes  13 

Salisbury  v.  Philadelphia  383 

Salter  v.  Reed                  .  660 

Saltonstall  v.  Banker  308 

Sampson  v.  Goochland  579 

v.  Justices  505 

Samuels  v.  Nashville  508 

San  Antonio  v.  Jones  104 

v.  Lane  426 

v.  Lewis      237,  374,  512 

Sanborn  v.  Deerfield  13 

Sanders  v.  McLin  611 

Sanderson  v.  Cross  622 

Sanford  v.  Augusta  787 

v.  Tremlett  132 

San  Francisco  v.  Calderwood 

433,  498 
v.  Hazen  219 
San  Francisco  Gas  Co.   v.  San  Fran- 
cisco 382 


TABLE     OF     CASES     CITED. 


51 


Sanger  v.  Commissioners  695 

Sargeant  v.  Bank  491 

Sargent  v.  Railroad  Co.  573 

Sarnia  v.  Railway  Co.  523 

Sarocco  v.  Geary  757 

Sater  v.  Plank  Road  Co.  488 

Satterlee  v.  San  Francisco  497 

Sauk  v.  Philadelphia  228 

Saulet  v.  New  Orleans    494,  501,  504 

Saunders  v.  Haynes  135 

Savacool  v.  Boughton  176 

Savage  v.  Bangor  789 

v.  Gulliver  739 

Savannah  v.  Charlton  291 

v.  Cullens  780 

v.  Hartridge    488.  605,  624 

v.  Hussey  302,  361 

v.  State  694 

v.  Steamboat  Co. 

52,  394,  523 

Savings  Bank  v.  Winchester  372 

Sawyer  v.  Alton  536,  604 

v.  Corse  778 

v.  North  field  748 

v.  Williams  129 

Saxton  v.  Beach  211 

Scad  ding  v.  Lorant  214,  225 

Scales  v.  Chattahoochee  County       10 

Scammon  v.  Chicago       521,  605,  643 

v.  Scammon  232 

Seaming  v.  Conger  275 

SchafiEer  v.  Cadwallader  446,  686 

Schenck  v.  Peay  221 

v.  Supervisors  424 

Schenley  v.  Alleghany 

481,  594,  596,  618 

v.  Commonwealth      46,  60, 

498,  503,  636,  653 

School  v.  Canal  109 

School  Com.  v.  Dean  21 

School  Directors  v.  Anderson         664 

v.  Dunkelberger442 

v.  Georges  529 

School  District  v.  Atlierton  158,  204, 

206,  232,  236,  237 

v.  Blakeslee 

120,  205,  241 

v.  Lord  239 

v.  Richardson         129 

v.  Tapley  129 

v.  Thompson  406 

v.  Wood  13 

Schoonmaker  v.  Church  501 

Schroder  v.  City  Council         273,  357 

Schurmier  v.  Railroad  Co. 

491,  492,  525 
Schuyler  County  v.  People  108 

Schwartz  v.  Flatboats  618 


Scofield  v.  School  District        92,  782 

Scott  v.  Chicago  579 

v.  Des  Moines  536 

v.  Manchester         777,  778,  781 

Scovil  v.  Cleveland 

52,214,481,588,596,  638 
v.  Giddings  784 

Scudder  v.  Trenton  467 

Seagraves  v.  Alton  883 

Seale  v.  Mitchell  357 

Seaman  v.  New  York  77 

Seamen  v.  Patten  175 

Sears  v.  Dennis  788 

v.  West  291,  632 

Secretary  v.  McGarrahan  670,  692,712 
Sedberry  v.  Commissioners 

665,  708,  710 
Seebold  v.  Spitler  435,  512 

Seiple  v.  Elizabeth  City  62,  155 

Selectmen  v.  Spaulding  632 

Selma  v.  Mullen  374 

Semmes  v.  Columbus  396 

Serrot  v.  Omaha  790 

Serrill  v.  Philadelphia  634 

Severin  v.  Eddy  793,  795 

Seward  v.  Milford  789 

Seybert  v.  Pittsburg  83,  407,  416 

Shackford  v.  Newington  103 

Shafer  v.  Mumma 

147,  302,  310,  334,  344,  357 
Shaftner  v.  St.  Louis  467,  469,470,479 
Shallcross  v.  Jeffersonville  80 

Shapleigh  v.  Pillsbury  510 

Sharon  Iron  Co.  v.  Erie  445 

Sharp  v.  Dunoven  633 

v.  Johnson  470,  605,  058 

v.  Spier  470,  605,  616,  658 

Sharpless  v.  Mayor   104,  105,  106,  482 
Sharrett's  Road  537 

Shartle  v.  Minneapolis  505,  789 

Shattuck  v.  Woods  173 

Shaver  v.  Starrett  482 

Shaw  v.  Charlestown  479 

v.  Dennis  104,  588 

v.  Kennedy  284 

v.  Mayor  174,  740,  741 

v.  Pickett  653 

Shawnee  Co.  v.  Carter  387 

Shea  v.  Lowell  789 

Shearman  v.  Carr  98,  734 

oheehan  v.  Gleason  60 

v.  Good  Samaritan  Hos- 
pital 616 
Sheffield  v.  Watson  176 
Sherbourne  v.  Yuba  County  775 
Sheldon  v.  Kalamazoo  769,  773 
v.  School  District  58,  738 
Shelby  County  v.  Railroad  Co.  44,  588 


52 


TABLE     OF     CASES     CITED. 


Shelton  v.  Mobile      319,  320,  354, 358 
Shepherd  v.  Chelsea  788 

v.  Municipality  74 

Shepardson  v.  Colerain  789 

Shepley  v.  Fifty  Associates    789,  790 
Sherburne  v.  Fiske  175 

Sherman  v.  McKeon  496,  524 

Sherwin  v.  Bugbee 

51,  57,  204,  205,  206 
Shipley  v.  Railroad  Co.  488 

Shirley  v.  Lunenburg  366 

Shoalwater  v.  Armstrong  611 

Shoemaker  v.  Commissioners         751 
v.  Goshen  424 

Shoolhed  v.  Charleston  668 

Short  v.  New  Orleans  410 

Shotwell  v.  Mott  443 

Shrader,  Ex  parte  95,  303 

Shrewsbury  v.  Brown  383 

Shreveport  v.  Walpole  581 

Shriver  v.  Pittsburgh 
Siebrecht  v.  New  Orleans 

371,  381, 383 

Sights  v.  Yarnalls  609,  669 

Sikes  v.  Hatfield  169,  379,  386 

v.  Ransom  663 

Sill  v.  Corning  127,  263,  366 

v.  Lansingburg  445,  450 

Silliman  v.  Wing  751 

Srlverthorn  v.  Railroad  Co.  706 

Summons  v.  Camden  783 

v.  Cornell  530 

v.  Nan  ant  129 

v.  State  632 

aimcnds  v.  Gardner  642, 643 

v.  Mumford  473 

Simpson  v.  Savage  53 

Sirrton  r.  Ashbury 

43,  44,  519,  538,  596,  668 
Sixth  Ave.  R.  R.  Co.  v.  Kerr  570 
Skeen  v.  Lynch  501 

Skerritt's  Case  136 

Skinkle  v.  Covington  77,  718 

Skinner  v.  Bridge  Co.  783 

Slack  v.  Railroad  Co.  58,  90,  104 

Slater  v.  Wood  147 

Slatten  v.  Railroad  Co.    558,  564,  570 
Slattery,  Ex  parte  357,  363 

Slaughter  v.  Commonwealth 

291,  591,  594 
v.  People  302 

Slaughter  House  Cases  550 

Slee  v.  Bloom  158, 159 

Sleeper  v.  Bullen  400,401,738 

Sloan  v.  McConahy  443 

v.  State  30,  52 

Small  v.  Danville  39,  773 

Smead  v.  Railroad  C ;  381 


Smelson  v.  State 
Smith,  Ex  parte 

v.  Aberdeen 


Adrian 

Ancker 

Appleton 

Barrett 

Cheshire 

Commonwealth 

County 

Cronkhite 

Darley 


v 

v. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 

v.  Dedham 

v.  Gates 

v.  Helmer 

v.  Hueston 

v.  Huntington 

v.  Hutchinson 

v.  Kernochen 

v.  Kinard 

v.  Knoxville 

v.  Law 

v.  Lock 

v.  Madison 

v.  Marston 

v.  Mayor 

v.  McCarthy 

23,  126,136,  245,714 
Metropolitan  Gas  Co.  546 
Milwaukee  401, 800 

Morse  41,  44,  60,  61,  86 

Natchez  Steamboat  Co.  158 
New  Orleans  406 

New  York         139,168,174 


751 

302 

481,  590,  596 

127 

163 

41,114 

445 

57,406 

169 

170,  235 

153 

202, 224 

786 

101 

25 

507,  510,  522 

101 

751 

54 

505 

253 

223,  225,407 

503 

55,  291,  309 

591 

388,  391 


Railroad  Co. 

Redfield 
v.  Sac  County 
v.  Sacramento 
v.  San  Antonio 
v.  Sheely 
v.  Smith 
v.  St.  Joseph 
v.  State 


117 
706 
426 


v.  Turner 
v.  Warden 
Washington 


v.  Wendell 
Smith's  Case 
Smoot  v.  Hart 

v.  Wetumpka 
Snook  v.  Brantford 
Snow  v.  Adams 
Snyder  v.  Rockport    74,  564,  781,  783 
Society  v.  Commonwealth  189,190,193 

v.  New  London 

104,  420,  423,  426 

v.  Pawlet  22,  51 


365 

444 

109,173,  181 

789 

160,  499, 500,  502, 

520,521,530 

591 

458 

543, 782,  783 

789 

109,  113 

65 

579,  789 

799 

789 


TABLE     OF     CASES     CITED. 


53 


Society  v.  Van  Dyke                         192 

State  v.  Board  of  Education           669 

v.  Young                               117 

v.  Bonner                                  672 

Soper  v.  Henry  County                      10 

v.  Boscawen                            745 

Soulard  v.  St.  Louis                          789 

v.  Bradbury                     500,  505 

South  Bay  &  Co.  v.  Gray                 769 

v.  Bradford                              719 

South  Ottawa  v.  Foster                    785 

v.  Branin                            54,  611 

South  P.  R,  Co.  v.  Reed          192,  557 

v.  Brown                                   432 

Southgate  v.  Covington                   633 

v.  Bryce 

Southworth  v.  Railroad  Co.              25 

181,  183,191,192,193,716 

So  utter  v.  Madison 

v.  Buffalo                   147,  340,  381 

41,  114,  685,  686,  703,  705,  712 

t.  Burbank                        685,  687 

Sower  v.  Philadelphia 

v.  Burlington           176,  747,  787 

244,  473,  476,  478 

v.  Burnett                                 726 

Spangler  v.  Jacoby                           229 

v.  Campton                               579 

Spaulding  v.  Lowell 

v.  Canterbury                     23, 124 

11,13,  55,  57,58,314,  381 

v.  Carver                                   505 

Sparhawk  v.  Salem                  788,  789 

v.  Catlin                    494,  499,  507 

Speaker  v.  Glass                                184 

v.  Chamber  of  Commerce 

Spear  v.  Robinson                     135,  216 

181, 183,  185 

Specht  v.  Commonwealth               330 

V.Charleston           357,481,713 

v.  Detroit                      469,  471 

v.  Choate                                 716 

Speed  v.  Crawford                             33 

v.  Cincinnati                              24 

Speer  v.  School  Directors               103 

v.  Cincinnati  Gas  Co.        30,  61, 

Sprague  v.  Coenen                            658 

248,  520,  529,546,  547,  550, 

v.  Worcester      781,  797,  802 

665,  713,  719,  723,  725 

Sprawl  v.  Lawrence                         153 

v.  City  Clerk                            249 

Spray  v.  Thompson                          476 

v.  City  Council 

Springfield  v.  Hampden                   699 

67,591,613,  629,630,  631 

v.  Harris                375,  382 

v.  Clark 

v.  Le  Claire     791,  792, 793 

54,  245,  250,  298,  302,  333 

v.  Railroad  Co.     555,  560 

v.  Clay  County                         686 

Stackpole  v.  Healy                           544 

v.  Clegg                                    366 

Stadler  v.  Detroit     146,  174,  188,  191 

v.  Cleveland                             272 

Staniland  v.  Hopkins               163. 166 

v.  Clerk                                    141 

Stafford  v.  Albany                             475 

v.  Clunet                                   475 

Stanton  v.  Camp                                376 

v.  Cockrell     144,  476,  741,  744 

v.  Springfield             786,  789 

v.  Conlin                                   361 

Starin  v.  Genoa  104,  106,  108,419,423 

v.  Commissioners            176,  432, 

Starr  v.  Rochester                            768 

669,  688,  695,  713,  744,  747 

v.  Trustees                                368 

v.  Common  Council        190,  191 

v.  Wilmington                         147 

v.  Cornvil                                  789 

State  v.  Addison                               616 

v.  County  Auditor                  686 

v.  Allen                            163,  167 

v.  County  Judge              28,  676, 

v.  Aius                                       330 

685,  686,  695,  699,  708,  712 

v.  Ancker                                  163 

v.  Cowen                  302,  330,  384 

v.  Armstrong                              20 

v.  Crummey                              302 

v.  Atkinson              436, 508,  520 

v.  Curran                                     23 

v.  Atlantic  City                       596 

v.  Custer                          664,  666 

v.  Auditor                        668,  680 

v.  Davenport           685,  686,  687 

v.  Bailey    663,  076,  694,  695,  699 

v.  Dawling                                629 

v.  Barksdale                             746 

v.  Dawson                                457 

v.  Barlow                          388,  669 

v.  Dean                                     596 

v.  Beloit                            446,  685 

v.  Delesdenier                            14 

v.  Bergen                          246,  596 

v.  Deliesseline 

v.  Bill                 739,  740,  741,  743 

144,  199,  220,  680,  714 

v.  Binder                    23,  215,  251 

v.  Dews                                       34 

v.  Blanchard                             134 

v.  Digby                                  488 

V.  Board                                      6941 

v.  Directors                             392 

54 


TABLE     OF     CASES     CITED. 


State  v. 
v. 
v. 

V. 
V. 
V. 
V, 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


Donahay  204,  741 

Douglass  716 

Dousman  24 

Dowling  740 

Dubuclet  671 

Dunn  680 

Dunnington  176 

Eastabrooke  297 

Elizabeth  635,  642,  643 

Elkinton      703,  704,  707,  712 
Elwood  699 

Fairchild  697 

Fenley  406 

Ferguson     162,  165,  250,  298 
Findley  153 

Fitzgerald    139, 141,  142,  368 
Flanders  36 

Fond  du  Lac  685 

Foster  228 

Freeholders  673 

Freeman 

250,  253,  298,  309,  333 
Fullerton  591 

Funk  141,  142,  368 

Garlock  29 

Gastinel  135 

Gates  703,  712 

Georgia  178 

Georgia  Medical  Soc.  178,181 
Giles  135 

Gilmanton  124 

Glasgow  176 

Glennon  11 

Gorham  579,  747 

Governor  141,  671 

Graham  671 

Graves 

61,  249,  473,  474,  482,  694 
Great  Works  Milling  Co.  747 


Gregg 

Gummersall 

Gutterrez 

Hamilton 

Hand 

Halen 

Halifax 

Harper 

Harris 

Haskell 

Hastings 

Hay 

Helfrid 

Herod 

Hill 

Hoboken 

Hoyt 

Hudson 


505 
726 


737 
639 
694 
604 
176 
297 
372 
699 
309 
357 
292,  570,  571,  628 
491 
291 
166,  228 
265,  471,  596,  639, 


042,  647,  740,  741,  746,  748 


State  v.  Hug  473,  479,  688 

v.  Huggins  144 

v.  Hull  309 

v.  Hundehausen  30 

v.  Jackson  358 

v.  Jacobs  129,  160,  274 

v.  Jersey  City        54,  60,  67,  70, 
74,  124,  180,  181,  183,  184, 
185,  186,  193,  207,  209,  221, 
223,  225,  228,  234,  244,  24.k 
246,  265,  308,  469,  471,  483, 
505,  537,  565,  570,  605,  619, 
642,  643,  644,  647,  727. 
v.  Johnson        26,  140,  368,  505 
v.  Jones  535,  698,  699,  706,  707 
v.  Judge  676,  712 

v.  Justices  176 

v.  Keokuk  472,  479,  668 

v.  Kirkley 

246,  372,  663,  665,  766,  768 
v.  Kispert  711 

v.  Kline  136 

v.  Lafferty  149,  347 

v.  Laverack  316,  521 

v.  Leffingwell  599,  699 

v.  Lean  697 

v.  Led ford  302 

v.  Dehre  696,  718 

v.  Leovy  34 

v.  Lieber  313 

v.  Lingo  181,  183,  185 

v.  Loomis  676 

v.  Lyons  721 

v.  Madison        82,  405,  432,  433 
v.  Marble  494 

v.  Marlow        141,  144,  368,  715 
v.  Marston  676,  716 

v.  Mayberry  176 

v.  Mavnard  147,  357 

v.  Mavor  23,  30,  34, 

50,  52,  55,  86,  176,  756,  789 
v.  JUcArthur  366 

v.  McCrillua  667 

v.  McDowell  310 

v.  McGarry  183 

v.  Merrill  329,  332 

v.  Merry  53 

v.  Miller  54 

v.  Milwaukee  41,  446, 

685,  686,  688,  698,  699,  704 
v.  Milwaukee  Gas,  &c.  Co. 

30,  548 
v.  Mitchell  667,  668 

v.  Mobile  52, 

316,  508,  520,  521,  535,  538 
v.  Moffitt  670 

v.  Morris  Common  Pleas  23 

v.  Morristown  54,  250 


TABLE     OF     CASES    CITED. 


55 


State  v. 
v. 
v. 
v. 

v. 

V. 

V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
•  V. 
V. 

V. 
V. 
V. 
V. 

V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
7 
V. 
V, 

y. 

V. 
V, 
V. 
T. 
V. 
V. 
V. 


Moss  362 

Moultrieville  276,  278 

Mount  685 

Newark  46,  209, 

265,  599,  616,  642,  727,  740 

New  Boston  505 
New  Brunswick 

60,  537,  596,  619 

New  Orleans  399 

North  591 

Norwood  155 

Noyes  9,  23 

Orange  639 

Passaic  County  537 

Paterson  60,  245 

Pender  357 

Perkins  154,  357 

Perth  Amboy  642 

Pettis  529,  531 

Pinckney  591 

Pitot  684 

Plunkett  297,  302 

Police  Jury  673 
Pollard 
Portage 

481,  594,  596,  617,  638 

Porter  153 

Putnam  County  686 

Rahway  143,  695,  696 

Railroad  Co.  32, 

286,  449,  520,  521,  695,  746 


State  v.  Supervisors 
v.  Swearingen 
v.  Swift 
v.  Tappan 
v.  Tolan 
v.  Toomer 
v.  Town  Council 
v.  Township 
v.  Trask 
v.  Trustees 


673,  710 
59,  134,  135 

476,  740,  741 
44,  587 
762 
153 
613,  616,  720 
176 
507 
14,  109, 


Ramos 

Raymond 

Richland 

Richmond 

Ricker 

Riord  an 

Roberts 

Robinson 

Rush 

Saline  County 

Schnierie 

Schlier 

School  Dist. 

Scott 

Sellers 

severance 

S^e.byville 

ijnerman 

Snerwood 

S-iJeids 

Smith 


182,  680 

745 

103 

505 

366 

24 

291,  606 

669 

176 

423,  7306 

144,  696,  730 

632 

718 

23,  722 

176 

353 

176,  747 

297 

174 

176 

135 


Southern  Steamship  Co.    655 
Springtield  47 

Stearns  345,  358 

Stewart  476,  740,  741 

St.  Louis  Co  Court 

30,  34,  93.  762 


113,  114,  181,  183,  191,  425 
v.  Tupper  565 

v.  Turnpike  Co.  713,  723 

v.  University  433 

v.  Van  Home  425 

v.  Van  Winkle  241 

v.  Volkman  594 

v.  Wakely  475,  476 

v.  Wapello  County  90,  104 

v.  Warmouth  671 

v.  Warren,  &c.  Co.  667 

v.  Water  Commissioners 

740,  741 
v.  Weatherly  718 

v.  Welch  253,  263,  330,  333 

v.  Whittingham  747 

v.  Wilkesville  230 

v.  Wilkinson  499,  501,  507,  520 
v.  Williams  204 

v.  Wilmington 

142,  146,  215,  357 

v.  Wilson         500,  505,  511,  68G 

v.  Winkelmeier  23 

v.  Wood  County  665 

v.  Woodward  433, 

436,  445,  498,  499,  508,  520 

v.  Wrotnowski  671 

v.  Young  18,  357,  366 

v.  Zanesville,  &c.  Co.  695 

State  Bank  v.  Brackenridge   433,  629 

v.  Knoop  30 

v.  Madison  613,  628 

v.  Navigation  Co.  31 

State  Tax,  Case  of  591 

St.  Charles  v.  Powell  529 

v.  Rogers  740 

Steam  Navigation  Co.  v.  Dandridge 

372,  382 

Steamship  Co.  v.  Joliffe  67 

v.  Port  Wardens      67 

Stebbins  v.  Jennings  22 

v.  Merritt  130,  231 

Steckert  v.  East  Saginaw      229,  230, 

248,  610,  636,  738 

Steel  v.  Davis  County  410,  413 

Steele  v.  Buckhardt  789 

v.  Martin  139,  715 

Stein  v.  Burden  97 


56 


TABLE     OF     CASES    CITED. 


Stein  v.  Mayor  104,  G28 

Steines  v.  Franklin  County     02.  416, 

418.  424   426,  753 

Stephani  v.  Brown  795 

Sterrett  v.  Houston  777 

Stetson  v.  Faxon  74,  521 

v.  Kempton     13,  55,  92,  103, 

379,  381,  751 

Stevens'  Case  707 

Stevens  v.  Chicago  355 

v.  Society  204,  237 

Stewart  v.  Baltimore  473,474,479,482 

v.  Board  471 

v.  Commonwealth  338 

v.  Mayor  367 

v.  New  Orleans         773,  775 

v.  Polk  County  104 

v.  Southard    '  176,  177 

v.  State  158,  159 

Stickney  v.  Maidstone  788 

v.  Salem  762,  786 

Stilk  v.  Myrick  91 

Stillham  v.  Isham  65 

Stillwater  v.  Green  129 

Stinson  v.  Gardiner  786,  788 

Stites  v.  Curtis  496,  524 

St.  John  v.  East  St.  Louis  603 

v.  New  York     313,  316,  581 

St.  Joseph  v.  Anthony  650 

v.  Hamilton  473 

v.  O'Donoghue  596 

v.  Railroad  Co.      626,  628 

v.  Rogers       23,  105a,  106, 

416c,  418,  424 

v.  Sayville  626 

St.  Louis  v.  Alexander  23,  53, 106,423 

v.  Allen 

15,  38,  126,  634,  636.  657 
v.  Benton  253 

v.  Bentz  302 

v.  Boatmen's  Ins.  Co.       609 
v.  Boffinger  245,  305 

v.  Cafferata      253,  302,  330 
v.  Clements        60,  596,  638. 
639,  648,  650,  653 
v.  Coons  651 

v.  De  Noue  650,  653 

v.  Eters  60 

v.  Ferry  Co.  625,  627 

v.  Grove  293 

v.  Gurno  543,  787 

v.  Insurance  Co.       616,  629 
v.  Jackson  313,  319 

v.  McCoy  305 

v.  McLaughlin  605.  632 

v.  Merton  449 

v.  Newman  529 

v.  Russell  15,38,126,634,636 


St.  Louis  v.  Shields  34,  41,  74 

v.  Smith  299 

v.  Weber  255,  261,  313,  319 
v.  Wiggins  Ferry  Co. 

626,  627 
St.  Louis  County  Courts  v.  Sparks 

680 
St.  Louis  Gas  Co.  v.  St.  Louis  126 
St.  Louis  Hospital  v.Williams  121 
St.  Louis  Public  School?  v.  St.  Louis 

616 

St.  Luke's  Church  v.  Slack  665 

St.  Paul  v.  Coulter  28,  245,  260,  261, 

262,  313,  319 

v.  Kirbv  789 

v.  Laidler  319 

v.  Marvin  740 

v.  Seitz  789,  791 

v.  Troyer  299 

Stock  v.  State  176 

Stockbridge  v.  West  Stockbridge    51 

Stocking  v.  State  161 

Stoddard  v.  Gilman  228,  249 

Stokes  v.  New  York 

277,  323,  324,  346 

Stone  v.  Boston  476 

v.  Brooks  495,  503 

v.  Cambridge  473 

v.  Huggins  176 

v.  Mayor        740,  742,  757,  759 

v.  School  District  204 

Stoneburgh  v.  Brighton  376 

Storm  v.  Odell  743 

Stormfeltz  v.  Turnpike  Co.     518,  519 

Storrs  v.  Utica  401 

Stotesbury  v.  Smith  91 

Stow  v.  Wise  224 

Strahl,  Ex  parte 

142,  144,  147,  210,  214,  368 

Stratman,  Ex  parte  357 

Stratton  v.  Allen  81,  82 

v.  Oulton  174 

Strauss  v.  Insurance  Co.  371,  407 

v.  Pontiac  245,  289,  299 

Street  v.  County  Commissioners     683 

v.  Francis  739 

v.  Holyoke  789 

Street  Case       225,  468,  469,  599,  639 

Street  R.  R.  Co.  v.  City  R.  Co.       558 

v.  Cumminsville 

564,  570,  573,  574 
v.  Smith  572 

Street  Railroad  Co.'s  Appeal  572,  574 
596,  599,  628 
Strieker  v.  Kelly      129,  228,  265,  470 
Strickland  v.  Railroad  Co.  104 

Strong  v.  Darling  126,  491 

Strong's  Case  665,  668,  676,  681 


TABLE     OF     CASES     CITED. 


57 


Stroud  v.  Philadelphia 

481,  596,  644.  647 

Stuber's  Road  518,  527 

Sturtevant  v.  Alton  132,  371,  372 

v.  Liberty  406 

Stuyvesant  v.  New  York  61,  252 

v.  Woodruff  499 

Sumner  v.  First  Parish  751 

Sunbury,  &c.  R.  R.  Co.  v.  Cooper  248 

Sun  Ins.  Co.  v.  Mayor  588,  596 

Supervisors  v.  Bates  372 

v.  Bowen  398 

v.  Briggs  751 

V.  Cofhnbury  155 

V.  Durant 

688,  693,  699,  711 
v.  Gorrell  744 

v.  Manny  751 

v.  Patterson  445 

v.  People  229 

v.  Rogers  693 

v.  Schenck   387,  418,  424 
v.  Stimpson  176 

v.  United  States 

669,  686,  688,  689 


v.  Welcher 
Surgi  v.  Snetchman 
Sussex  v.  Strader 
Sutton  v.  Board  of  Police 

v.  Cole 

v.  Louisville 
Sutton's  Hospital  Case 
Suydam  v.  Keys 
Swails  v.  State 
Swain  v.  Comstock 
Swan  v.  Williams 
Swann  v.  Buck 

v.  Cumberland 
Swartz  v.  Flatboats 

v.  Page 


Talbott  v.  Grace 
Talcott  v.  Pine  Grove 
Tallahasse  v.  Fortune 
Tallman  v.  Janesville 
Tanner  v.  Albion 
Tarlton,  Ex  parte 
Tarver  v.  Commissioners 
Tash  v.  Adams 
Tate  v.  Railroad  Co. 
Tatem  v.  Wright 
Taylor  v.  Americus 


72,  500 

415 

789,  790 

595 

309 

476,  740 

706 

10,  13,732 

527,  555,  557 

591 

J8,  740 


v.  Board  of  Health  751 

v.  Boulware  126 

v.  Carondelet 

245,  279,  286,  449 
v.  Donner  605 

Gloucester  191, 192 

Griswold   250,253,  258,  259 

Henry 
207,  232, 235,  237,  239,  241 

Newberne  23,  104,  106 

Palmer 

209,  265,  599,  616,  653 
v.  Plymouth  756,  757,  759 

v.  Porter  458, 465 

v.  School  Commissioners    668 


Swee.t  v.  Carver  County  409 

Sweetzer  v.  Hay  155 

v.  Mead  376 

Swift  v.  Newport  633 

v.  Williamsburg    372,  401,  768 

188,  194 


Symmers  v.  Regem 


T. 

Tackaberry  v.  Keokuk 

Taft  v.  Montague 
v.  Pittsford 

Tailors  of  Ipswich 

Tainter  v.  Mayor 

Talbot  v.  Dent 

v.  Hudson 
v.  Whipple 


246,  603 

617  v.  St.  Louis  543, 783 

579  v.  Strong  149 

774,  785  Taylor's  Case  163 

211,  443  Teagarden  v.  McBean  505 

448  Teft  v.  Size  355 

253  Templin  v.  Iowa  City  800 

176  Ten  Eyck  v.  Canal  Co.  31 

50  Tenney  v.  Lenz  292,  294 

51  v.  Lumber  Co.  130 
467,  471  Terre  Haute  v.  Turner     538,  544,  610 

168  Terrett  v.  Sharon  732 

476,  638,  740  v.  Taylor  40, 431 

69  Terry  v.  Bank  41 

450,  514  v.  New  York  779 

Tesh  v.  Commonwealth  357 

Thayer  v.  Boston 

74,  500,  563,  766,  769, 770,  797 

Theological  Soc.  v.  Childs  436 

Thetford's  Case  355 

Thicknesse  v.  Canal  Co.  109 

Thillate  v.  Stanley  458 

Thomas  v.  Ashland  20,  24,  93,149,306 

v.  Commissioners  26 

v.  Dakin  22 

v.  Leland  43,  44 

v.  Mt.  Vernon     299,  354,  360 

v.  Richmond         55,  83,  251, 

263,  372,381,384,406,  411 

v.  White  155 

Thomson  v.  Carroll  251,  620 

v.  Floyd  690 


613 

386 

S72,  403,  406 

109,  353 

728 

23,  104 

463,  465 

797 


58 


TABLE     OF     CASES     CITED. 


Thomson  v.  Lee  County  55,  104,  106, 

114,  405,  416,  4166 

v.  Mayor  72,  74 

v.  Mount  Vernon  263 

v.  Nicholson  154 

v.  Pacific  R.  R.  Co.   18,  591 

v.  People  726 

v.  Pittston  103,  1056 

v.  Schermerhorn  55,  60,469 

v.  Stickney  176,  177 

Thorndike  v.  Boston  134 

Thornton  v.  Smith  366 

Thurlow  v.  Bogart  523 

Thurston  v.  Hancock  784 

Tierney  v.  Dodge 

24,  54,  357,  361,  362,  368 
Tileson  v.  Newman  127 

Tillman  v.  People  495,  505 

Tilmes  v.  Marsh  524 

Tines  v.  State  366 

Tinkham  v.  Tapscott  323 

Tinsman  v.  Railroad  Co.  30 

Tisdale  v.  Minnock  351 

Tobacco  Co.  v.  Woodroffe  353 

Tobey  v.  "Wareham  204 

Todd  v.  Birdsall  176 

v.  Railroad  Co.  498,  510 

Tolland  v.  Wellington  579 

Toll  Bridge  Co.  v.  Railroad  Co.      454 
Toll  Co.  v.  Betsworth  176 

Tolman  v.  Marlborough  770 

Tomlinson  v.  Branch  616 

Tompertv.  Lithgow  143,182,191,193 
Topping  v.  Gray  210 

Topsham  v.  Rogers  385 

Torbush  v.  Norwich  774 

Toronto  v.  Bowes  371,  730 

Torry  v.  Milbury  13,  206 

Tottendell  v.  Glazby  349 

Touchard  v.  Touchard  39 

Tounier  v.  Municipality  400 

Towles  v.  Justices  579 

Towle  v.  State  671 

Town  Council  v.  Burnett  751 

v.  Court  203 

v.  Harbers  29 

v.  Lithgoe  499,503,505 
Towns  v.  Tallahasse  295 

Townsend  v.  Hoyle  382,  466,  536 

Township  v.  Carey  176 

v.  Linn  176 

Township  Trustees  v.  State  667 

Tracy  v.  Swartout  176 

Trafton  v.  Alford  175 

Treadwell  v.  Commissioners 

10,  419,  420,  425,  762 

v.  New  York  780 

Treat  v.  Middleton  665,  673 


Trenton  Railroad  Case  518,  527 

Trigg  v.  Glasgow  625 

Trigally  v.  Memphis         245,  272,  366 
Tripp  v.  Lyman  789 

Trippe  v.  Frazier  440 

Trombley  v.  Humphrey  462 

Trott  v.  "Warren  385 

Trowbridge  v.  Mayor  74 

Troy  v.  Railroad  Co.  579 

Truchelut  v.  City  Council 

46.  267,  352,  366 

True  v.  Melvin  694 

Trustees  v.  Aberdeen  35,  43,  47 

v.  Bradbury  47 

v.  Cherry      23,  373,  381,  412 

v.  Chicago  468 

v.  Davenport  476 

v.  Erie  52,  249,  269 

v.  Hill  159,  160,  214 

v.  Keeting  297 

v.  King  437 

v.  Lefiier  346 

v.  McConnel         65,  616,  629 

v.  Osborne  238,  605 

v.  Parks  21 

v.  Peaslee  117,  122,  443 

v.  Reneau  123 

v.  Tatman  30,  31 

v.  Winston  43 

Tucker  v.  Aikin  176,  206 

v.  Justices  176,  228 

v.  Rochester  770 

v.  Shorter  176 

v.  Virginia  City  95,  305 

Tufts  v.  Charlestown  642 

Tuley  v.  State  158,  159 

Turner,  Ex  parte  663,  669 

v.  Brantford  785 

v.  Dartmouth  799 

Turney  v.  Chamberlain  433,  532 

Turnpike  Co.  v.  Berry  579 

v.  McKean  241 

v.  Railroad  Co.  519 

Turpen  County  Commissioners       168 

Tuttle  v.  Holyoke  788 

v.  State  338 

Tyson  v.  School  Directors  1056 

U 


Udall  v.  Trustees 

124 

Underhill  v.  Manchester 

760 

v.  Smith 

658 

v.  Trustees 

405 

Underwood  v.  Carney 

585 

v.  Green 

308 

v.  Stuyvesant 

503 

Union  v.  Crawford 

762 

TABLE     OF     CASES     CITED. 


59 


Union  Pacific  R.  R.  Co.  v.  Davis 

County  696 

Union  Pacific  R.  R.  Co.  v.  Lin- 
coln County  591 
Union  R.  Co.  v.  Cambridge  327 
Uniontown  v.  Commonwealth  673 
United  States  v.  Addison  174,  682 
v.  Baltimore,  &c. 
R.  R.  Co.  30,  39,  43, 
44, 64,  615,  615a 


Bank 

Barker 

Boice 

Bradley 

Bridge  Co 

Brown 

Chicago 


409 
176 
176 
153,  154 
460 
169 
462,  491, 


v.  Dantl ridge 
v.  Duluth 
v.  Fanning 
v.  Fillebrown 
v.  Guthrie 
v.  Hart 
v.  Holly 
v.  Hoar 
v.  Hudson 
v.  Keokuk 


498,  503,  504 


154 

67 

80 

237 

670 

521 

302 

529 

184 

686,  693 


v.  Kirkpatrick  529 
v.  Land  Commissioner 
670 
v.  Le  Baron 
v.  Linn 


v.  Prescott 
v.  Seaman 
v.  Tingey 
v.  Wright 
University  v.  Maultsby 
v.  Walden 
v.  Winston 
Updegraff  v.  Crans 
Updyke  v.  Campbell 
Upton  v.  Railroad  Co. 

v.  Starr 
Urmey  v.  Wooden 
Utica  Ins.  Co.  v.  Scott 


153 
153 

176 
670 
153 

162,  165 
34 
170 
34 
210 
309 
487 
176 
442 
725 


Van  Eppes  v.  Commissioners  762 

Van  Hoffman  v.  Quincy  41,  114, 

416,426,608,  685.  686,  688 
Van  Hostrup  v.  Madison  City 

58,  416,  420.  422 
Van  Keuren  v.  Johnson  176 

Van  Ness  v.  Washington  512 

Van  Orsdall  v.  Hazard  134,  163 

Vanover  v.  Davis  92 

v.  Justices  737 

Vansant  v.  Roberts  122 

Van  Sicklen  v.  Burlington  13,  94 

Van  Swartow  v.  Commonwealth 

357,  361,  366 
Van  Valkenburgh  v.  Milwaukee  504 
Van  Wickle  v.  Railroad  Co.  469 

Van  Wormer  v.  Mayor  305 

Varick  v.  New  York  727,  728 

v.  Smith  458,  463,  465 

Varner  v.  Nobleborough  410 

Vason  v.  Augusta       62,  146,  302,  361 
Vassault  v.  Austin  357 

Veazie  v.  China  103 

v.  Mayo  560 

v.  Railroad  Co.  555 

Veeder  v.  Lima        106,  423,  424,  425 
Vernon  Soc.  v.  Hills  159 

Verrior  v.  Sandwich  164 

Vick  v.  Vicksburg  494 

Vidal  v.  Girard  438 

v.  Mayor  437,  443 

Vinal  v.  Dorchester  796 

Vincennes  v.  Richards  783 

Vincennes  University  v.  Indiana 

18,  109,  110,  113 
Vincent  v.  Nantucket  13,  55,  99,  381 
Vintners  v.  Passey 

145,  162,  261,  349,  353 
Vionet  v.  Municipality  305 

Virginia  City  v.  Mining  Co.        24,  57 
Visitors  v.  State  34 

Von  Phul  v.  Hammer  24,  26 


Valpey  v.  Manley  751 

Vanblaricum  v.  State  488 

Vance  v.  Bank  18,  50 
Vanderbilt  v.  Adams  93,  94,  326,  338 

Vandersmith's  Case  522 

Vandever  v.  Mattock  150 

Vandine,  Petitioner  261,  303 

Vandyke  v.  Cincinnati  307,  790 


W. 


Waco  v.  Powell  335 

Wadded  v.  New  York  783 

Waddington  v.  St.  Louis  67 

Wade  v.  Richmond  126 

Wadleigh  v.  Gillman  93,  94,  250,  338 

v.  Sutton  386 

Wager  v.  Troy  R.  R.  Co. 

496,  524,  556,  557,  573,  574 

Walcot  v.  People  632 

Walcott  v.  Laurence  County  750 

v.  Swampscott  772,  777 

Waldo  v.  Wallace  147,  357 


60 


TABLE     OF     CASES    CITED. 


Waldraven  v.  Memphis 
Waldronv.  Berry 

v.  Lee 
Wales  v.  Muscatine 
Walker  v.  Cincinnati 

v.  City  Council 
v.  Hallock 
v.  Railroad  Co. 
v.  St.  Louis 
v.  Swartout 
Walkley  v.  Muscatine 

664,  685,  687,  688 

Wallace  v.  Mayor  90 

v.  San  Jose  55,  87,  372 

v.  Shelton  481,  594,  600 

Walling  v.  Dunkirk  771 

v.  Mayor  474,  778 

v.  Shreveport  768,  769 

Walsh  v.  Matthews  599 

v.  People  747 

Waltharn  v.  Kemper  785 

Wammacks  v.  Holloway 

139,  141,  368 

Wanstead  v.  Hill  308 

Wapello  County  Case  587 

Ward  v.  Bartholomew  451 

v.  Hartford  County         65,  762 

v.  Jefferson  788 

v.  Maryland  591,  609 

v.  Morris  591 

v.  State  591 

v.  Turnpike  Co.  761 

Waring  v.  Mobile  127 

Warner  v.  Mower  225 

v.Myers  716 

v.  People  168,  170 

Warnock  v.  Lafayette  218 

Warren  v.  Charlestown 

11,  23,  126,  127 

v.  Henly  587, 

588,  596,  597,  635,  783 

v.  Lyons  City  512, 

513,  514,  515,  518,  527 

v.  Mayor  354 

v.  Railroad  Co.  483 

Warren  County  v.  State  668 

Wartman  v.  Philadelphia 

313,  316,  317,  320 
Warwick  v.  Mayo 

369,  476,  524,  526,  638,  744 

Washington  v.  Frank  340 

v.  Harvard  751 

v.  Nashville  326 

v.  Mayor  642,  596 

v.  State  592 

Washington  Avenue  588,  595 

Water  Commissions,  &c.  473 


151,  170 

Waters  v.  Leech 

253 

381 

176 

v.  People 

176 

129 

v.  State 

176 

65 

v.  Waterman 

176 

105 

Watertown  v.  Cady 

.686 

728 

v.  Cowen 

207, 

520 

176 

Waterville  v.  County 

588 

476 

Watson  v.  Railroad  Co. 

488 

751 

v.  South  Kiugston 

466 

176 

Watts  v.  Carroll  Parish 

695 

v.  Scott 

849 

Waugh  v.  Leech  491,  494,  536 

Wayland  v.  County  Commissioners 

462 

Wayne  County  v.  Benoit  174 

v.  Detroit  302,  344,  383 

Weaver  v.  Devendorf  176,  740 

Webb  v.  Moler  515 

v.  Neal  437 

Webber  v.  Gray  176 

v.  Railroad  Co.  544 

Weber  v.  Lee  County  686,  693 

v.  San  Francisco  738 

v.  Zimmerman  707,  708 

Webster  v.  Chicago  603 

v.  Hawrington  9,  732 

Webster  County  v.  Taylor  412 

Weder  v.  East  St.  Louis  592,  603 

Weeks  v.  Foreman  343,  358,  366 

v.  Milwaukee  594, 

596,597,616,617,620,  622, 

765,  780,  789. 

Weet  v.  Brockport     39,  774,  789,  790 

Weightman  v.  Washington 

39,  774,  789,  790 
Weir  v.  Bush  158,  150 

Weisbrod  v.  Railroad  Co. 

494,  495,  501 

Weisenberg  v.  Appleton  789,  790 

Welch  v.  People  364 

v.  Ste.  Genevieve  109,  110,  112, 

114,  209,  212,  214 

v.  Stowell  308,  310,  312 

v.  Supervisors  669 

Weld  v.  Proprietors  761 

Welker  v.  Potter 

20,  24,  470,  471,  580,  642 

Wellcome  v.  Leeds  560 

Wells  v.  Atlanta  58,  371 

v.  Battelle  232 

v.  Burbank  22 

v.  Burnham  888,  639 

v.  McLaughlin  537 

v.  Weston  588 

Wendell  v.  Brooklyn  172 

v.  Troy  790,  791 

Wertheimer  v.  Mayor  368 


TABLE     OF     CASES     CITED. 


61 


West  v.  Bancroft  545 

v.  Blake  50,  467 

v.  Greenville  297 

Westchester  v.  Apple  791,  795 

West  Covington  v.  Freking  50H 

Westfall  v.  Hunter  499,  508 

West  River  Bridge  Co.  v.  Dix 

454,  464,  467,  468 
Westerha^en  v.  Clive  238 

Western  College  v.  Cleveland 

39,  753,  757,  759 

.  Western  Savings  Fund  Soc.  v.  Phila 

delphia  30,  39,  40, 

41,  43,  61,  374,  395,  764 

Weston  v.  Charleston  588,  591 

v.  Syracuse  86 

Wetniore  v.  Brooklyn  Gas  Co.  70,  71 

v.  Story  226 

v.  Tracy  780 

Whalen  v.  La  Crosse  401 

Wharf  Case  (The)  67,  72 

Wheeler  v.  Chicago  383,  610 

v.  Cincinnati     757,  758,  774 

v.  Railroad  Co.  '    629 

v.  Westport  788,  789 

v.  Worcester  796 

Whicker  v.  Hume  429 

Whidden  v.  Drake  65 

Whitaker  v.  West  Boylston    784,  789 

White  v.  Charleston  758 

v.  City  Council  762 

v.  Cower  503 

v.  Flannigan  503,  522 

v.  Fuller  43,  47 

v.  Godfrey  496,  544 

v.  Kent  93,  149,  313,  538 

v.  New  Orleans  373,  388 

v.  Mayor  60,  174,  253, 

256,  481,  596,  637 

v.  Phillipson  175,  772 

v.  Polk  County  172 

v.  Railroad  Co.  405 

v.  Tallman 

101,  146,  279,  284,  285,  287 

v.  Washington  347 

v.  Yazoo  City        753,  755,  783 

Whiting  v.  Boston  727,  738,  739 

v.  Sheboygan  R.  R.  Co. 

104,  105 
Whitehouse  v.  Fellows  781 

Whiteside  v.  People  222 

Whitfield  v.  Longest        284,  289,  591 
Whithorn  v.  Thomas  134 

Whitlock  v   West  353 

Whitson  v.  Franklin 

346,  347,  564,  565 
Whittier  v.  Varney  232 


Whyte  v.  Nashville  60,  642 

Wickliffe  v.  Lexington  503 

Wier  v.  Railroad  Co.  487 

Wiggin  v.  New  York  59 

Wiggins  v.  McCleary  503 

v.  Philadelphia  392 

Wilbrund  v.  Avenue  R.  R.  Co.      572 

Wilcox  v.  Smith  176 

Wilde  v.  New  Orleans  769,  770 

Wilder  v.  Chicago  151 

Wildy  v.  Washburn  739 

Wiley  v.  Board  405 

v.  Brinfield  108 

v.  Parmer  591 

Wilkes  v.  Dimnan  176 

Wilkey  v.  Pekin  626 

Wilkinson  v.  Albany  305 

v.  Bank  663 

Willard  v.  Killingworth    55,  206,  258 

v.  Newburyport  11,  13, 

55,  57,  221,  376,  ?96 

v.  Presbury  596 

Willard's  Appeal  181,  187 

Willey  v.  Greenfield  410 

Williams,  Ex  parte  476,  744 

v.  Augusta        250,  253,  337, 

344,  358,  361,  366 

v.  Boardman  65 

v.  Cammack  481,  596 

v.  Church  491,  515 

v.  Clinton  788 

v.  Commissioners  694 

v.  County  Judge  667 

v.  Detroit        481,  589,  596, 

606,  619,  632,  635,  636, 

642,  643,  735 

v.  Kenney  05 

v.  Kent  610 

v.  Lunenburg  204,  215 

v.  /w       .eans  760 

v.   v       Co.  524,556,557,574 

v.  .I'.iiool  District 

214,  232,  616,  751 
Williamson  v.  Commonwealth 

343,  349,  358,  361,  364 
Willimantic  Soc.  v.  School  Soc.  127 
Willis  v.  Booneville  36b 

v.  Legris  12". 

Willoughby  v.  Jenkins  496 

Willis  v.  County  Road  482 

Wilmington  v.  Roby        289,  590,  591 
Wilson  v.  Berkstresser  668 

v.  Commissioners  685 

v.  Goodman  176 

v.  Inloes  67,  71,  74 

v.  Marsh  Co.  467 

v.  Mayor       175,  753,  783,  799 


62 


TABLE     OF     CASES     CITED. 


Wilson  v.  New  York 

62,  753,  800,  801,  802 

v.  Poole  649 

v.  School  District  10,  385,  386 

v.  Sexon  490 

Windham  v.  Portland  128,  129 

Wingate  v.  Eniskillen  Oil,  &c.  Co. 

384 
Winn  v.  Macon  46,  387 

Winona  v.  Huff 

491,  494,  503,507,520,  523 
Winpenny  v.  Philadelphia  77 

Winsboro  v.  Smart  319 

Winship  v.  Enfield  788 

Winslow  v.  Commissioners    446,  749 
Winston  v.  Mosebey  668,  680 

Wisby  v.  Boute  491,  494,  505 

Wisconsin  v.  Duluth  14 

Wiswall  v.  Hill  72 

Withers  v.  Buckley  454 

Woelpper  v.  Philadelphia  322 

Wolcott  v.  Wolcott  221 

Wolfe  v.  Railroad  Co.  558,  570 

Wood  v.  Bank  23,  51 

y.  Brooklyn  263 


Jefferson  County  Bank 
Lynn 


Mears 

Peake 

Searl 

Ward 
v.  Waterville 
Woodbridge  v.  Detroit 
Woodbury  v.  Hamilton 
Woodfolk  v, 
Woodruff  v. 


581,  583, 


241 

381 

794 

739 

340,  349 

796 

383 

596,  597,  632 

13 

Railroad  Co.  488 

Neal  496,  513,  515,  524 


v.  Parkham  591 

v.  Trapnall  41 

Woods  v.  Lawrence  County 

108,  421,  425 
Woodson  v.  Skinner  449,  514,  518 
Woodstock  v.  Gallup  464,  476 

Woodyer  v.   Hadden  501 

Woolrich  v.  Forrest  121 

Worcester  v.  Canal  Co.  790 

v.  Walker  149 

Work  v.  State  366 


Working!: am  v.  Johnson 


261 


Worrell  v.  Munn  3?7 

Wor.«ley  v.  Municipality  67,  751 

Worth  v.  Fayetteville  630,  737 

Wray  v.  Pittsburgh  596 

Wrexford  v.  People  303,  308 

Wright  v.  Boston  645,  647,  751 

v.  Chicago  606 

v.  Defrees  248 

v.  Fawcett 

v.  Linn  433,  442 

v.  Victoria  445,  498 
Wyandotte  City  v.  Wood         24,  24", 

Wyley  v.  Wilson  204 

Wyman  v.  New  York  503 

Wyncoop  v.  Society  90 

Wynne  v.  Wright  291,  591 


Xiqner  v.  Bujac       504,  508,  510,  526 

T. 

Yarmouth,  Borough  of  21 

v.  North  Yarmouth  30,  47 
Yates  v.  Judd  497,  504 

v.  Milwaukee 

70,  71,  75,  308,  323,  324,  497 


Yeatman  v.  Crandell 

600, 

617 

York  v.  Forscht 

91, 

302 

Yost's  Report 

458 

Yroung  v.  Bank 

50 

v.  Boston 

735 

v.  Buckingham 

199, 

221 

v.  Camden  County 

407 

v.  Commissioners  176,761,762 
v.  St.  Louis  252 

v.  Yarmouth  552,  796 


Zabriskie  v.  Railroad  Co. 

23,  104,  312,  559,  564 

Zanesville  v.  Richards  592,  622 
Zottman  v.  San  Francisco 

373,  386,  390,  610 

Zylstra  v.  Charleston      272,  273,  277, 

302,  303,  359,  366,  744 


MUNICIPAL   CORPORATIONS. 


CHAPTER  I. 

Municipal     Institutions. — Introductory     Historical 

View. 

§  1.  It  does  not  fall  within  the  scope  of  the  present 
treatise  to  give  a  detailed  account  of  the  origin  and  rise  of 
cities  and  towns,  nor  to  trace  minutely  the  history  of  the 
rights,  powers,  and  jurisdiction  with  which  they  are  now 
generally  invested.  Such  an  inquiry  more  appropriately 
belongs  to  the  legal  antiquary  or  to  the  historian  ;  and  yet  a 
brief  historical  survey  of  the  rise  and  progress  of  municipali- 
ties is  essential  to  an  intelligent  understanding,  even  its  prac- 
tical bearings,  of  the  subject  of  which  it  is  proposed  to  treat. 
The  origin  of  towns  and  cities,  and  the  exercise  by  them,  to 
a  greater  or  less  extent,  of  local  jurisdiction,  may  be 
ascribed  to  a  very  early  period. 

Phoenicia  and  Egypt  were  long  noted  for  their  large  and 
splendid  cities.  In  the  latter  country,  we  find  Memphis, 
one  of  the  old  world's  proudest  capitals,  whose  location, 
even,  was,  until  very  recently,  a  matter  of  learned  con- 
jecture and  speculation.  It  was,  centuries  ago,  buried 
beneath  the  sands  of  the  encroaching  desert,  and  in  our 
own  day  it  has  been  exhumed  in  the  presence  of  Bedouins 
too  wild  to  be  interested  in  the  wondrous  revelations  of  its 
entombed  mysteries.  Temples  and  buildings,  vast  and 
magnificent,  dating,  probably,  fifteen  centuries  before  the 
Christian  era,  and  preserved  by  burial,  both  from  decay  and 
spoliation,  may  to-day  be  seen  almost  in  their  original  per- 
fection. There,  too,  in  "  old,  hushed  Egypt  and  its  sands,' ' 
on  the  banks  of  the  Nile,  are  the  massive  ruins  of  Thebes 
5 


66  MUNICIPAL    CORPORATIONS.  [Ch.  L 

(Diospolis),  the  cily  of  "the  hundred  gates,"  ante-dating 
secular  history,  and  claimed  by  the  Egyptians  to  have  been 
the  first  capital,  as  it  undoubtedly  was  one  of  the  oldest  cities, 
of  the  world.  As  the  eye  runs  along  the  colonnades  of 
ruined  temples,  the  mind  runs  back  through  the  Egypt  of 
the  Ptolemies  to  the  Egypt  of  the  Pharaohs,  four  thousand 
years  ago,  when  Thebes  was  in  its  splendor  and  its  pride. 
But  in  the  midst  of  these  stupendous  remains  of  this  early 
civilization,  we  find  no  evidence  of  their  municipal  history 
and  organization.  The  chief  lesson  they  teach  is,  that  they 
were  the  centres  of  great  wealth  and  power  in  the  governing 
classes,  and  that  the  people,  who  constitute  the  true  wealth 
of  modern  cities,  were  at  the  absolute  disposal  of  their 
masters,  bound  down  and  degraded  by  servitude. 

§  2.  Notwithstanding  the  people  of  Greece  were  of  a 
common  blood,  language,  and  religion,  Greece  was  never 
politically  united.  Political  power  resided  not  in  a  number 
of  independent  states,  but  in  a  large  number  of  free  and  in- 
dependent cities,  with  districts  of  country  adjoining  or  at- 
tached to  them.  Each  city,  except  in  Attica,  was  sovereign 
— was  the  sole  source  of  supreme  authority — and  possessed 
the  exclusive  management  and  control  of  its  own  affairs. 
The  citizen  of  one  was  a  foreigner  in  the  others,  and  could 
not,  without  permission  or  grant,  acquire  property,  make 
contracts,  or  marry  out  of  his  own  city.  The  Grecian  heart 
always  glowed  with  patriotic  fervor  for  the  city,  but  rarely, 
except  in  times  of  great  common  danger,  kindled  with  a 
love  for  the  whole  country.  And  although,  according  to 
Chancellor  Kent,1  the  "civil  and  political  institutions  of 
some  of  the  states  of  Greece  bear  some  analogy  to  the  coun- 
ties, cities,  and  towns  in  our  American  states,"  yet  the  anal- 
ogy, it  must  be  confessed,  is  both  remote  and  uncertain,  and 
without  practical  value  in  the  inquiries  we  are  to  prosecute. 

§  3.  Municipal  as  well  as  private  corporations  were  fa- 
miliar to  the  Roman  Law.  "To  conceive,"  says  a  modern 
writer,  "  of  ancient  Rome  as  the  capital  of  Italy  in  the  same 
sense  that  London  is  the  capital  of  England,  or  Paris  o.f 
France,  would  be  a  great  mistake.     London  and  Paris  are 

1  Kent  Com.  263,  note. 


Cn.  I.]  INTRODUCTORY    HISTORICAL     VIEW.  67 

the  chief  cities  of  their  respective  countries,  because  the}'' 
are  the  seat  of  government.  The  people  of  these  cities  and 
their  surrounding  districts  have  no  privileges  superior  to 
those  of  other  English  or  French  citizens.  But  the  city  of 
ancient  Rome,  with  her  surrounding  territory,  was  a  great 
corporate  body  or  community,  holding  sovereignty  over  the 
whole  of  Italy  and  the  provinces."  None  but  persons  en- 
rolled on  the  lists  of  the  tribes  had  a  vote  in  the  popular 
assemblies  or  any  share  in  the  government  or  legislation  of 
the  city."  '  The  common  division  of  civic  communities 
established  by  the  Roman  government  was  three,  prefec- 
lutes,  municipal  towns,  and  colonies.  The  prefectures  did 
not  enjoy  the  right  of  self-government,  but  were  under  the 
rule  of  prefects,  and  the  inhabitants  were  subjected  to  the 
burdens,  without  enjoying  any  of  the  privileges  of  Roman 
citizens.  But  with  the  municipal  towns  it  was  different. 
They  at  length  received  the  full  Roman  franchise,  "and 
hence,"  says  the  learned  author  just  named,  "arose  the 
common  conception  of  a  municipal  town  ;  that  is,  a  com- 
munity of  which  the  citizens  are  members  of  the  whole 
nation,  all  possessing  the  same  rights*  and  subject  to  the 
same  burdens,  but  retaining  the  administration  of  law  and 
government  in  all  local  matters  which  concern  not  the 
nation  at  large," — a  description  which  answers  almost  per- 
fectly to  the  modern  notion  of  municipal  organizations  in 
England  and  America.  The  colonies,  composed  of  Roman 
citizens,  were  established  by  the  parent  city,  sometimes  to 
reward  public  services,  but  generally  as  a  means  of  secur- 
ing and  holding  the  country  which  had  been  subdued  by 
Roman  arms.  The  constitution  of  these  colonies,  and  the 
rights  of  the  citizens  and  communities  composing  them, 
varied,  but  it  is  not  necessary  for  our  purpose  to  trace  these 
differences.  The  colonies  were  obliged  to  provide  for  the 
erection  of  a  city,  and  cities  thus  erected  were  called 
municipia.  We  thus  perceive  the  justness  of  the  observa- 
tions of  a  distinguished  modern  historian  and  statesman, 
who  says  that  "  the  history  of  the  conquest  of  the  world  by 
Rome  is  the  history  of  the  conquest  and  foundation  of  a 
vast  number  of  cities.      In  the   Roman  world  in  Europe 

1  Dr.  Liddell,  Rome,  chap.  XXVII.  sec.  8. 


68  MUNICIPAL     CORPORATIONS.  [Ch.  I. 

there  was  an  almost  exclusive  preponderance  of  cities  and 
an  absence  of  country  populations  and  dwellings."  '  The 
nation  was  a  vast  congeries  of  municipalities  bound  together 
by  the  central  power  of  Rome. 

When  the  Romans  colonized  and  settled  the  countries 
they  had  conquered  they  established  fixed  governments 
and  carried  with  them,  and  to  a  greater  or  less  extent  neces- 
sarily imparted,  their  arts,  sciences,  language,  and  civiliza- 
tion to  their  new  subjects.  And  although  the  political  con- 
dition of  the  vanquished  people  was  far  from  being  de- 
sirable, still  the  immediate  residence  among  them  of  the 
civilized  Roman  could  not  fail  to  produce  effects  more  or 
less  beneficial ;  and  thus  the  municipia,  securing  what  the 
Roman  arms  had  achieved,  became  the  efficient  means  of 
spreading  civilization  throughout  the  Roman  world. 

§  4.  After  the  subversion  of  the  Roman  Empire  the 
towns  of  Europe  from  the  fifth  to  the  tenth  century  were  in 
a  state  neither  of  servitude  nor  liberty,  though  their  con- 
dition differed  greatly  in  different  countries.  During  this 
period  the  power  and  influence  of  the  towns  were,  in  general, 
on  the  decline.  The  power  of  the  church  was  great,  and 
the  inhabitants  found  their  chief  protection  in  the  clergy. 

The  establishment  of  the  feudal  system  worked  a  great 

1  M.  Guizot's  Hist.  Civilization  in  Europe,  Lect.  II.:  "Rome,  in  its 
origin,  was  a  mere  municipality,  a  corporation.  In  Italy,  around  Rome, 
we  find  nothing  but  cities— no  country  places,  no  villages.  The  country 
was  cultivated,  but  not  peopled.  The  proprietors  dwelt  in  cities.  If  we 
follow  the  history  of  Rome,  we  find  that  she  founded  or  conquered  a  host 
of  cities.  It  was  with  cities  that  she  fought,  it  was  with  cities  she  treated, 
into  cities  she  sent  colonies.  In  the  Gauls  and  Spain  we  meet  with  nothing 
but  cities ;  the  country  around  is  marsh  and  forest.  In  the  monuments  left 
us  of  ancient  Rome  we  find  great  roads  extending  from  city  to  city ;  but 
the  thousands  of  little  by-paths  now  intersecting  every  part  of  the  country 
were  unknown.  Neither  do  we  find  traces  of  the  immense  number  of 
churches,  castles,  country  seats,  and  villages  which  were  spread  all  over 
the  country  during  the  middle  ages.  The  only  bequests  of  Rome  consist 
of  vast  monuments  impressed  with  a  municipal  character,  destined  for  a 
numerous  population,  crowded  into  a  single  spot.  A  municipal  corporation 
like  Rome  might  be  able  to  conquer  the  world,  but  it  was  a  much  more 
difficult  task  to  mould  it  into  one  compact  body."  II.  See  also  2  Kent 
Com.  270,  note  ;  Dr.  Adam  Smith's  interesting  chapter  :  Wealth  of  Nations, 
book  III.  chap.  IL 


Ce.  L]  INTRODUCTORY     HISTORICAL     VIEW.  tf9 

change  in  the  condition  of  the  towns.  Before  that,  towns, 
as  we  have  seen,  were  the  centres  of  wealth  and  population. 
The  ruling  class  lived  within  them.  The  land  was  cultivated 
by  persons  who  were  not  recognized  as  having  political 
rights.  After  feudalism  was  established,  this  changed.  The 
proprietor  then  lived  upon  his  estates,  instead  of  living  within 
a  town ;  the  town  became  part  of  the  lands  of  the  lord,  or 
enclosed  within  his  fief.  It,  with  its  population,  became  thus 
subject  to  his  arbitrary  exactions,  oppression,  and  pillage. 
Still  the  towns  gradually  prospered,  and  with  prosperity 
came  wealth ;  with  wealth  came  influence  and  power.  Such, 
in  general,  was  the  condition  of  the  towns  of  continental 
Europe  down  to  the  eleventh  century.  About  this  time, 
without  any  union  or  concert,  many  of  them  in  most  of  the 
countries  of  Europe  rose  against  the  lords,  and  demanded 
for  the  burgesses,  commonalty,  or  inhabitants,  a  greater  or 
less  measure  of  enfranchisement.  Sometimes  a  town  failed 
in  its  struggle,  and  its  oppression  was  redoubled  by  the  vic- 
torious lord.  Sometimes  the  towns  were  aided  by  the  king, 
who  was  frequently  not  unwilling  to  humble  the  arrogant 
and  haughty  nobility,  and  thereby  acquire  the  influence  and 
affection  of  those  whom  he  thus  assisted.  Notunfrequently, 
however,  the  struggle  had  to  be  maintained  by  their  own 
unaided  resources,  and  when  successful,  the  result  was  the 
granting  of  Charters,  conferring  more  or  less  extensive 
municipal  immunities  and  rights,  by  the  lords  to  the 
burghers.  These  charters,  as  Gruizot  justly  observes,  were 
in  the  nature  of  "treaties  of  peace  between  the  commons  and 
their  lords  ;"  were,  in  fact,  "bills  of  rights"  for  the  people.1 
During  the  twelfth  century,  "all  Europe,  and  especially 
France,  which  for  a  century  had  been  covered  with  insur- 
rections by  burghers  against  their  lords,  was  covered  by 
charters  more  or  less  favorable  ;  the  corporators  enjoyed  them 
with  more  or  less  security,  but  still  they  enjoyed  them."  i 

1  People  v.  Morris,  13  Wend.  325,  334,  per  Nelton,  J. 

8  Guizot's  Hist.  Civ.  in  Europe,  lecture  VII.  This  philosophic  and 
valuable  work  is  the  source  from  whence  are  drawn  most  of  the  statements 
of  the  text  as  to  the  condition  of  the  towns  of  Europe  from  the  fifth  to  the 
tenth  century.  See  similar  account,  Wealth  of  Nations,  book  III.  chap. 
HI. ;  Hallam's  Middle  Ages,  chap.  II.  part  II,  and  notes  to  later  editions. 


70 


MUNICIPAL     CORPORATIONS. 


[Ch.  I. 


§  5.  After  the  overthrow  of  the  Roman  Empire  and  the 
civilization  which  accompanied  the  Roman  power,  Enrope 
became  indebted  to  cities  and  to  the  authority  which  they 
acquired,  and  the  jurisdiction  which  they  exercised  for  the 
creation  of  the  third  estate — popular  power — and  for  the 
development  of  the  principles  of  constitutional  or  free 
government. ' 

The  Italian  cities,  especially  Venice,  Genoa,  and  Pisa, 
grew  rich  from  the  commerce  resulting  from  the  vast  armies 
which  the  Crusaders  for  two  hundred  years  had  successively 
pushed  forward  into  the  Holy  Land.  The  oprjressive  feudal 
system  was  at  this  time  in  full  force  throughout  Europe. 
These  Italian  cities  used  their  power  and  wealth  to  secure 
their  independence.  Cities  and  towns,  as  well  as  people 
who  dwelt  in  the  country,  were  alike  subject  to  the  arbitrary 
and  oppressive  exactions  of  their  feudal  masters.  Some  of 
the  cities  in  the  eleventh  century  obtained  their  freedom  by 
purchase,  and  some  by  force,  and  some  by  gift.  They  were, 
in  effect,  constituted  so  many  little  republics,  with  the  right 
to  manage  their  own  concerns.  In  this  way,  before  the 
end  of  the  thirteenth  century,  nearly  every  considerable 
city  of  Italy  was  enfranchised  or  had  received  extensive  cor- 
porate immunities  from  the  sovereign  or  lord.  The  happy 
effects  were  soon  perceived  in  the  increased  population  and 
prosperity.  • 

§  6.  Whether  from  example,  as  asserted  by  Dr.  Robert- 
son, or  from  other  causes,  the  same  course  was  adopted  by 
the  cities  of  other  states  in  Europe.  The  king  of  France, 
LouU.le  Gros,  and  his  great  barons,  granted  many  charters 
of  community,  by  which  the  inhabitants  were  freed  from 
feudal  servitude  and  erected  into  municipal  corporations, 
with  the  power  of  local  self  government.     These  charters 

1  "The  institution  of  cities  into  communities,  corporations,  or  bodies 
politic,  and  granting  them  the  privilege  of  municipal  jurisdiction,  contrib- 
uted more,  perhaps,  than  any  other  cause,  to  introduce  regular  government, 
police,  and  arts,  and  to  diffuse  them  over  Europe."  Robertson's  Charles 
V. ;  see  Hallam's  Middle  Ages,  chap.  II.  part  II.  M.  Guizot  considers  th( 
three  great  elements  of  modern  civilization  to  be  the  Feudal  System,  th< 
Christian  Church,  the  Commons,  or  free  corporate  cities;  Civ.  in  Europe 
Lecture  VII.;  see  also  Wealth  of  Nations,  book  III.  chap.  III.,  on  "The 
Rise  and  Progress  of  Cities  and  Towns,  after  the  Fall  of  the  Roman  Empire." 


Ch.  L]  introductory    historical    VIEW.  71 

contained  grants  of  new  privileges,  and  prescribed  salutary 
methods  for  the  enforcement  of  rights  and  the  redress  of 
grievances.  They  are  both  interesting  and  instructive,  and 
a  brief  view  of  their  character  is  given  in  the  note.1 

We  meet,  in  France,  with  great  diversity  in  the  origin 
and  government  of  towns  and  cities.  In  some  of  them, 
especially  in  southern  France,  the  Roman  municipal  system, 
more  or  less  modified  from  time  to  time,  was  perpetuated 
The  Roman  system  was  formed  upon  an  aristocratic  model. 
In  each  municipium  there  was  a  senate,  called  an  or  do  or 
curia.  This  was,  politically  considered,  the  city  ;  it  was 
the  governing  body.  The  mass  of  the  population,  except  in  a 
few  cases,  had  no  voice  in  municipal  affairs.  This  senate  was 

1  Abstract  of  municipal  charter  in  the  middle  ages.— In  those  turbulent 
times  personal    safety  was   an  object   of   the   first  importance,    and  this 
was  usually   afforded   to  the   vassal  by  the  baron   or   lord.      The   com- 
munities or  free  towns  which  were  instituted,  undertook  to  provide  for 
the  safety  of  their  members,  independent  of  the  nobles.     For,  1.     All  the 
members  were   bound  by  oath  to  assist  and  defend  each   other    against 
all  aggressors.     2.  All  residents  in  a  town  made  free,  were  obliged  to  take 
part  in  the  mutual   defence  of  its  members.     3.  The  communities,  could 
execute  the  judgments  of  their  magistrates  by  coercion,  if  necessary.     4. 
The  practice  of  making  private  satisfaction  for  crimes  was  abolished,  and 
provision  made  for  the   regular   punishment  of   offenders.     5.  A  person 
reasonably  suspected  to  be  about  to  injure  another,  might,  as  with  us  at 
the  present  day,  be  compelled  to  give  security  to  keep  the -peace.     These 
communities  also  undertook  to  provide  for  the  security  of  property  by  the 
following :    1.  Abolishing  the  right  of  the  creditor  to  seize  the  effects  of 
his  debtor  with  his  own  hand  and  by  his  private  authority,  and  compelling 
him  to  proceed  before  a  magistrate,  who  was  authorized  to  issue  the  neces- 
sary process  for  the  seizure  and  sale  of  property,  humane  and  necessary  ex- 
emptions being  allowed.     2.  Every  member  was  obliged  to  bring  some  of 
his  property  into  the  town,  or  build  a  house,  or  buy  land ;  and  in  some 
places  the  members  were  bound  for  each  other.     3.  Judgments  by  magis- 
trates duly  selected,  took  the  place  of  the  arbitrary  and  capricious  decisions 
of  the  baron  or  feudal  lord.     4.  Arbitrary  taxation  was  prohibited,  and 
regulations  for  an  equal  tax  were  sometimes  especially  prescribed.    Digested 
from  Robertson's  Charles  V.,  vol.   I.   note  XVI.  Proofs  and  Illustrations. 
"  Th«  communities  of  France  never  aspired,"  says  this  accurate  and  elegant 
historian,  "  to'the  same  independence  with  those  in  Italy.     They  acquired 
in  France  new  privileges  and  immunities,  but  the  right  of  sovereignty  re- 
mained entire  to  the  king  or  baron  within  whose  territories  the  respective 
cities  were  situated,  and  from  whom  they  received  the  charter  of  their 
freedom."     11.     Charters  defined,  post,  sees.    15,  49.     Municipal  charters, 
treated  of,  post,  chaps.  V.  VI      Outline  of  modern  municipal  charter  in  the 
United  States,  post,  sec.  19. 


72  MUNICIPAL     CORPORATIONS.  [Ch.  I. 

composed  of  a  comparatively  small  number  of  families,  and 
the  office  was  hereditary.  When  the  body  became  thinned 
or  reduced  by  death  or  otherwise,  it  was  not  filled  by  the 
people,  the  mass  of  the  population,  but  by  the  survivors. 

Other  towns  or  communities  originated,  in  the  most  natu- 
ral manner,  upon  the  fiefs  or  estates  of  the  feudal  proprietors. 
Many  of  these  estates  became  centres  or  agglomerations  of 
population  composed  of  the  working  and  industrial  classes. 
Trade  sprung  up,  and  towns  and  cities  originated.  The 
lord,  or  proprietor,  was  interested  in,  and  derived  profit 
from,  their  prosperity.  To  induce  others  to  settle  there,  he 
often  conceded  certain  privileges.  He  did  not  emancipate 
them  from  all  feudal  restraints  or  domination,  but  these  he 
mitigated.  Often  he  granted  lands  and  privileges  to  all 
who  settled  in  towns  on  his  domains,  on  receiving  a  moder- 
ate fixed  rent  and  specified  military  services.  These  con- 
cessions had  no  higher  origin  than  the  personal  interest  of 
the  proprietor,  and  were  often  violated.  They  did  not  con- 
stitute the  towns  locally  independent,  or  make  them  true 
corporations.  But  limited  and  uncertain  as  these  conces- 
sions were,  the  towns  which  received  them  prospered  and 
became  more  or  less  important. 

Other  places  were  chartered  towns  and  true  corporations. 
In  the  twelfth  century  there  was  the  general  movement,  before 
noticed,  on  the  part  of  the  towns  of  France,  for  their  enfran- 
chisement, or  delivery  from  feudal  bondage.  The  extent  of 
this  movement  may  be  judged  from  the  fact  that  the  royal 
charters  of  this  period  are  numbered  by  hundreds,  and  those 
granted  by  the  lords,  by  thousands.  These  were,  in  general, 
wrested  from  the  feudal  proprietors  by  force,  or  the  fear  of 
it,  and  conferred  an  almost  independent  political  existence 
upon  the  commune,  or  town.  These  charters  gave  the  com- 
munity the  power  of  having  its  people  judged  for  offences  by 
magistrates  of  their  own  choosing  ;  crimes  and  punishments 
were  defined  ;  arbitrary  rents  and  taxes  abolished,  and  fixed 
rents  and  regular  taxes  substituted  ;  main-morte  and  other 
restraints  upon  the  alienation  and  enj  oyment  of  property  were 
removed.  The  government  of  towns  thus  created,  unlike 
those  which  were  mere  perpetuations  of  the  Roman  system, 
was  formed  upon  a  democratic  model.  A  voice  was  given  to 
all  burghers,  or  persons  of  a  certain  fortune,  or  who  exercised 


Ch.  L]  INTRODUCTORY     HISTORICAL     VIEW.  73 

a  trade  or  calling.  In  a  word,  with  considerable  diversity,  this 
class  of  towns  was  independent,  and  possessed,  in  local  mat- 
ters, the  power  of  self-government.  From  and  after  the  four- 
teenth century,  the  political  power  and  influence  of  the  towns 
of  France  decayed.  The  causes  of  this  decline  have  been 
traced,  with  a  masterly  hand,  by  M.  Guizot,  but  they  do 
not  relate  to  our  purpose.1  In  the  course  of  change,  we 
may  remark,  that  the  royal  power  over  them  became  pre 
dominant,  and  instead  of  being  self-governed,  they  were 
and  are,  administered  by  the  intendants,  or  officers  of  the 
king  or  emperor,  or  central  authority  at  Paris. 

Towns,  or  communes,  in  modern  France  are  governed  by  a 
mayor  and  council.  By  the  law  of  1855,  in  all  communes 
of  3,000  inhabitants  and  upwards,  these  officers  are  ap- 
pointed by  the  emperor ;  while  in  smaller  communes  the 
appointment  is  made  by  the  prefect  of  the  department,  him- 
self appointed  by  the  emperor.  The  prefect  may  suspend  mu- 
nicipal councillors,  but  the  emperor  alone  can  dismiss  them.' 

§  7.  It  seems  to  be  well  established,  that  the  towns  and 
cities  of  Spain  acquired  charters  of  freedom  at  an  earlier 
period  than  towns  in  France,  England,  or  Germany.'  The 
cities  of  Italy,  as  we  have  seen,  owed,  to  a  large  extent,  their 
freedom  to  their  commercial  importance  and  wealth  ;  but 

1  History  Civilization  in  France,  Lect.  XIX. ;  see,  also,  Hallam's  Middle 
Ages,  chap.  H.  part  II.  and  notes. 

3  American  Encyclopedia,  Commune. 

'  The  most  ancient  of  these  regular  charters  of  incorporation  now  ex- 
tant was  granted  by  Alfonso  V.  in  1020,  to  the  city  of  Leon  and  its  terri- 
tory. It  preceded,  by  a  long  interval,  those  granted  to  the  burgesses  in 
other  parts  of  Europe,  with  the  exception,  perhaps,  of  Italy.  Acts  of  en- 
franchisement became  frequent  in  Spain  during  the  eleventh  century,  sev- 
eral of  which  are  preserved,  and  exhibit  with  sufficient  precision  the  nature 
of  the  privileges  accorded  to  the  inhabitants.  Robertson  (in  his  History  of 
Charles  V.  Introductory  View),  who  wrote  when  the  constitutional  an- 
tiquities of  Castile  had  been  but  slightly  investigated,  would  seem  to  have 
no  authority,  therefore,  for  deriving  the  establishment  of  communities  from 
Italy,  and  still  less  for  tracing  their  progress  through  France  and  Germany 
to  Spain.     Prescott's  Ferdinand  and  Isabella,  Introduction,  vol.  I.  note  21. 

Hallam,  who,  as  well  as  Prescott,  founds  his  judgment  upon  the  his- 
torical works  of  Marina  and  Sempere,  expresses  a  similar  opinion  as  to  the 
early  period  at  which  the  towns  of  Spain  were  invested  with  chartered  rights 
and  privileges.     Middle  Ages,  chap.  IV. ;  lb.  chap.  H.  part  II.  and  notes. 


74 


MUNICIPAL     CORPORATIONS. 


[Ch.  I. 


those  of  Spain  owed  their  privileges  and  jurisdiction  to  an 
entirely  different  cause.  For  nearly  eight  hundred  years  the 
Gothic  inhabitants  of  Spain  had  been  engaged  in  an  almost 
uninterrupted  struggle  against  the  Moors  or  Arabs  who  occu- 
pied the  southern  part  of  the  peninsula. l  It  was  obvio.usly  the 
dictate  of  policy,  as  the  Spaniards  gradually  narrowed  the 
boundaries  of  their  enemies'  territory,  to  make  provision  for 
securing  and  holding  the  ground  thus  gained.  With  this 
view,  and  for  the  purpose  of  protecting  themselves  from  the 
frequent  raids  of  their  Arab  neighbors,  liberal  charters  where 
granted  to  towns,  with  extensive  districts  of  country  sub- 
ject to  their  municipal  jurisdiction. 

By  these  grants  or  charters  the  citizens  selected  their 
own  officers,  including  judges  and  a  common  council,  and 
enjoyed  all  the  essential  rights  of  freemen.  In  return,  the 
community  or  city  paid  a  certain  (no  longer  an  arbitrary) 
tax  or  rent,  and  owed  military  service.  For  more  effectual 
protection,  the  charters  frequently  prohibited  the  nobles 
from  acquiring  real  property  or  erecting  fortresses  or 
palaces  within  the  limits  of  the  community,  and  subjected 
them  to  its  jurisdiction  when  within  its  territory.  Large 
portions  of  the  adjacent  country,  as  we  have  said,  often  em- 

1  Mr.  Irving's  fine  reflections,  in  his  Alhambra,  upon  this  protracted  and 
famous  contest  between  the  Crescent  and  the  Cross,  are  not  inappropriate : 
"The  singular  fortunes  of  the  Arabian  or  Morisco-Spaniards,  form  one  of 
the  most  anomalous  yet  splendid  episodes  in  history.  A  remote  wave  of 
the  great  Arabian  inundation,  cast  upon  the  shores  of  Europe,  they  seem 
to  have  all  the  impetus  of  the  first  rush  of  the  torrent.  But  repelled  (by 
unsuccessful  battle)  within  the  limits  of  the  Pyrenees,  they  gave  up  the 
Moslem  principle  of  conquest,  and  sought  to  establish  in  Spain  a  peaceful 
and  permanent  dominion.  Generation  after  generation,  century  after  cen- 
tury passed  away,  and  still  they  maintained  possession  of  the  land.  "With 
all  this,  however,  the  Moslem  empire  in  Spain  was  but  a  brilliant  exotic 
that  took  no  permanent  root  in  the  soil  it  embellished.  Severed  from  all 
their  neighbors  in  the  west  by  impassable  barriers  of  faith  and  manners, 
and  separated  by  seas  and  deserts  from  their  kindred  of  the  east,  the  Mo- 
risco-Spaniards were  an  isolated  people.  Their  whole  existence  was  a 
prolonged,  though  gallant  and  chivalric,  struggle  for  a  foothold  in  a 
usurped  land.  '  They  were  the  outposts  and  frontiers  of  Islamism.  The 
peninsula  was  the  great  battle  ground  where  the  Gothic  conquerors  of  the 
north  and  the  Moslem  conquerors  of  the  east  met  and  strove  for  mastery; 
and  the  fiery  courage  of  the  Arab  was  at  length  (after  800  years)  subdued 
by  the  obstinate  and  persevering  valor  of  the  Goth." 


Ch.  I.J  INTRODUCTORY    HISTORICAL     VIEW".  75 

bracing  towns  and  villages,  were  annexed  to  the  city  01 
community  and  placed  under  its  laws  and  jurisdiction. 
"Thus,"  says  Mr.  Prescott,1  to  whom  we  are  chiefly 
indebted  for  this  sketch  of  the  early  municipalities  of 
Spain,  "while  the  inhabitants  of  the  great  towns  in 
other  parts  of  Europe  were  languishing  in  feudal  servitude, 
the  members  of  the  Castilian  corporations,  living  under  tfhe 
protection  of  their  own  laws  and  magistrates  in  time  of  peace, 
and  commanded  by  their  own  officers  in  war,  were  in  full  en- 
joyment of  all  the  essential  rights  and  privileges  of  freemen." 

§  S.  Britain  was  one  of  the  last  conquests  of  the 
Csesars,  and  was  one  of  the  first  of  the  western  provinces 
upon  which  they  released  their  hold.  The  Latin  language 
did  not  become  the  language  of  the  people ;  nor  did  the 
Romans,  as  in  many  of  the  continental  provinces,  fill  the 
country  with  memorials  of  their  skill  and  arts.  The  im- 
pressions made  by  the  mastery  of  the  Roman  were  not  des- 
tined to  be  permanent.  According  to  an  accurate  explorer 
and  philosophic  modern  historian,2  Britain,  when  subject  to 
Rome,  was  divided  into  thirty-three  townships,  with  a 
certain  share  of  local  self-government ;  and  quasi  municipal 
institutions,  for  a  lo»g  time  after  the  withdrawal  of  the 
Roman  power,  constituted  whatever  of  government  the 
people  possessed.  At  the  time  of  the  conquest  of  England 
by  William  of  Normandy  (A.  D.  1066),  the  towns  and  bor- 
oughs were  dependent  upon  the  uncertain  protection  of  the 
king  or  lord,  to  whom  they  owed  rents  or  service,  and  were 
liable  to  discretionary,  that  is,  arbitrary,  rates  or  talliages. 
They  were  not  incorporated,  did  not  constitute  bodies  poli- 
tic ;  and  being  composed  mainly  of  tradesmen  and  the 
lower  classes,  were  regarded  by  their  feudal  masters  as  pos- 
sessed of  no  political  and  of  but  few  civil  rights.  None  of 
them  enjoyed  the  right  of  representation  in  the  council  of 
the  nation,  and,  with  the  exception,  perhaps,  of  London 
and  a  few  of  the  greater  towns,  did  not  possess  the  right  of 
internal  or  self-government.  Some  time  between  1100  and 
1125  Henry  I.  granted  to  London  the  original  charter,  in 
which  were  conferred  many  valuable  municipal  privileges, 

1  History  Ferdinand  and  Isabella,  vol.  I.  Introduction,  sec.  1. 
Sir  James  Mackintosh's  History  of  England,  vol.  I.  p.  30. 


76 


MUNICIPAL     CORPORATIONS. 


[Ctt.  I. 


with  the  right,  among  others,  to  choose  certain  of  their  own 
officers,  such  as  sheriff,  justice,  and  the  like.'  But  the 
right  of  local  self-government  was  not,  in  general,  conferred 
upon  towns  and  boroughs  until  the  time  of  John,  who 
reigned  from  1199  to  1216. 3  Meantime  the  towns  and  cities 
continued  to  grow  in  population  and  wealth,  and  as  these 
increased,  their  disposition  to  submit  to  arbitrary  exactions 
proportionately  diminished,  and  their  independent  spirit 
and  desire  for  freedom  from  oppressive  restraints  became 
more  manifest ;  but  still  they  did  not  acquire  sufficient  influ- 
ence or  importance  to  be  allowed  a  representation  in  the 
states  of  the  kingdom  for  more  than  two  centuries  after  the 
conquest.  It  was  not  until  the  time  of  Edward  the  First 
that  cities  and  boroughs,  then  mostly  incorporated,  ob- 
tained the  right  of  returning  members  to  parliament.  The 
legislative  power  of  the  kingdom  was  at  this  time  vested  in 
the  king  and  the  council,  afterwards  called  the  parliament. 
This  council  was  constituted  of  the  spiritual  and  lay  peer- 
age. The  commonalty  of  England  had  no  voice  or  part  in 
the  legislature.  This  wise  and  politic  prince  was  greatly 
distressed  for  money,  and  instead  of  attempting  to  raise  it 
by  the  levy  of  arbitrary  taxes  or  talliages,  which  were  sub- 
mitted to  with  murmurs  and  yielded  sparingly,  preferred  to 
obtain  it  by  the  prior  voluntary  consent  of  the  cities,  towns, 
and  boroughs.  He  hit  upon  this  device.  He  caused  writs 
to  be  issued  to  about  one  hundred  and  twenty  cities  and 
boroughs,  enjoining  them  to  send  to  parliament,  along  with 
the  two  knights  of  the  shire,  two  deputies  from  each 
borough  within  their  county,  with  authority  from  their 
respective  communities  to  consent  to  what  the  king  and  his 
council  should  require  of  them.     As  the  experiment  proved 


1  This  famous  charter  has  no  date.  Its  substance  is  given  in  Norton's 
Commentaries  on  the  History,  Constitution,  and  Chartered  Franchises  of 
the  City  of  London,  and  its  various  provisions  explained  and  commented 
on;  book  II.  chap.  II.  p.  337.  In  the  latter  clause  of  this  charter  is  an 
allusion  to  the  very  ancient  custom  of  foreign  attachment,  in  which  is  to 
be  found  the  germ  of  all  our  foreign  attachment  laws.  Pulling's  Laws,  &c, 
of  London,  188;  Hallam's  Middle  Ages,  vol.  III.  chap.  VIII.  part  III. 
Mr.  Norton  gives  the  substance  of  all  the  charters  of  London  from  the 
time  of  William  the  Conqueror  to  the  present. 

s  Hallam's  Middle  Ages,  vol.  III.  chap.  Vin. 


Ch.  I]  INTRODUCTORY     HISTORICAL    VIEW.  77 

successful,  and  more  money  was  obtained,  and  with  less 
trouble,  than  in  the  former  way,  the  practice  was  continued. 
And  this,  according  to  the  best  opinions  of  learned  and 
careful  inquirers,1  is  the  origin  of  popular  representation, 
and  of  the  house  of  commons  itself,  the  latter  constituting, 
as  Macaulay  well  observes,  "the  archetype  of  all  the  repre- 
sentative assemblies  which  now  meet,  either  in  the  old  or  new 
world."2  And  for  this  England  and  the  world  are  in  a  great 
measure  indebted,  as  this  cursory  review  shows,  to  the  spirit  of 
independence  which  animated  the  towns  and  cities,  and  to  the 
pecuniary  wants  of  an  enterprising  and  ambitious  monarch. 
The  political  powers  thus  acquired  by  towns  gave  them 
political  importance.  This  power  was  courted  and  con- 
trolled by  the  crown.  The  king's  judges  decided  that  no 
corporation  was  valid  without  the  sanction  of  the  king,  and 
most  of  the  corporations  from  time  to  time  applied  to  the 
crown  for  a  grant  or  confirmation  of  their  privileges.  Their 
dependence  upon  the  crown  was  thus  established,  and  the 
crown,  as  a  check  upon  the  nobles,  encouraged  popular 
elections  by  the  whole  corporate  assembly*    In  the  course 

1  Hallam's  Middle  Ages,  vol.  HI.  chap.  VIII. ;  Hume,  England,  vol.  I. 
App.  II. ;  Dr.  Adam  Smith's  Wealth  of  Nations,  book  III.  chap.  HI., 
whose  account  of  the  condition  of  the  towns  and  boroughs  at  this  period, 
and  tbe  decay  of  the  power  of  the  lords  and  the  growth  of  the  power  of 
the  inhabitants  of  the  cities  is,  though  brief,  perspicuous  and  satisfactory, 
Norton's  Com.  Lond.  109.  A  distinctive  feature  of  boroughs,  in  England, 
is  the  right  of  the  borough  to  elect  members  of  parliament.  There  the 
term  borough  includes  cities  as  well  as  villages,  but  in  the  United  States 
the  term  borough  is  not  in  very  general  use,  and,  when  used,  designates  an 
incorporated  village  or  town,  but  not  a  city.  American  Cyclopedia,  v  ol. 
HI.  536,  Borough. 

5  History  England,  Vol.  I.  Chap.  I. :  "  The  crown !  it  is  the  house  of 
commons  1"  said  Mr.  Roebuck,  in  1858;  and  the  recent  history  of  Great 
Britain,  in  several  memorable  instances,  shows  that  against  the  declared  and 
positive  determination  of  the  commons  neither  the  crown  nor  the  lords,  in 
any  struggle  relating  to  popular  rights,  can  make  effectual  resistance.  And 
so  a  close  observer  of  our  American  institutions  will  discover  that  both  the 
senate  and  the  executive,  on  contested  questions,  ultimately  yield  to  tbe 
controlling  power  and  growing  importance  of  the  house  of  representatives. 

8  An  English  Municipal  Corporation,  as  will  be  explained  hereafter, 
consisted  usually  of  one  or  more  select  or  definite  bodies,  and  an  indefinite 
body,  the  latter  being  generally  composed  of  the  burgesses  or  citizens;  and 
a  Corporate  Assembly  was  a  meeting  of  all  the  bodies  and  not  of  the  select 
or  definite  bodies  alone. 


78  MUNICIPAL     CORPORATIONS.  [Ch.  1. 

of  time  it  was  found  that  these  representatives  were  more 
formidable  to  the  power  of  the  crown  than  the  nobility  had 
been.  In  Elizabeth's  time  compliant  judges  decided  that 
although  the  right  of  election  was,  by  the  original  constitu- 
tion or  charter,  in  the  whole  assembly,  still  from  usage, 
even  when  within  the  time  of  memory,  a  by-law  may  be 
presumed  giving  the  right  of  election  to  a  select  class  (more 
readily  controlled  by  the  crown)  instead  of  the  whole  body.1 

Afterwards,  to  increase  the  power  of  the  crown,  James 
incorporated  towns  or  boroughs,  endowing  them  with  the 
parliamentary  franchise,  but  confining  the  exercise  of  the 
right  to  vote  to  select  classes.  The  immense  power  of 
popular  representation  was  a  most  active  agency  in  the 
overthrow  of  Charles  I.,  and  the  temporary  subversion  of 
the  throne.  This  power  proving  inimical  to  the  arbitrary 
schemes  of  the  Protector,  he  expelled  the  members  by 
violence,  and  subdued  their  authority  in  parliament  by 
force.  He  then  secured  this  power  in  his  own  favor  by 
expelling  all  hostile  magistrates  and  officers  and  supplant- 
ing them  with  others  of  his  own  creation. 

On  the  restoration,  Charles  II.  commenced  his  reign  by 
reconstructing  the  corporations  and  filling  them  with  his 
own  creatures.  Judges,  also  creatures  of  the  king,  holding 
commissions  during  his  pleasure,  aided  him  in  his  scheme 
to  acquire  absolute  control  over  all  of  the  corporations  of 
the  realm.  London,  as  the  largest  and  most  influential,  was 
selected  as  an  example,  and  in  1683,  the  famous  quo  war- 
ranto was  issued  against  the  the  city  to  deprive  it  of  its 
charter,  for  two  alleged  violations,  one  of  which  was  stale, 
and  both  frivolous.  Judgment  passed,  of  course,  against 
the  city,  and  its  ancient  charter  was  abrogated.3  As  a  con- 
dition of  its  restoration,  it  was,  among  other  things,  provided 
that  thereafter  the  mayor,  sheriff,  clerk,  etc.,  should  not 
exercise  their  office  without  the  king's  consent ;  and  that  if 

1  Willcock  on  Municipal  Corp.  8 ;  3  Hallam's  Const.  History,  52. 

» Rex  v.  City  of  London,  Mich.  33  Car.  II. ;  2  Show.  262  ;Pulling's  Laws, 
etc.  of  London,  14.  The  history  of  the  seizure  of  the  city  franchises,  by 
virtue  of  the  writ  of  quo  learranto  is  given  at  some  length  by  Norton,  Com. 
on  the  History,  etc.  of  London,  book  I.  chap.  XX. :  see  also  The  Case  of 
the  City  of  London,  8  How.  State  Trials,  1340,  et  se^. 


Ch.  L]  introductory   historical   view.  79 

the  king  twice  disapproved  of  the  officers  elected  by  the 
corporation,  he  might  himself  appoint  others.  In  short,  the 
city  was  deprived  of  the  right  of  electing  its  own  officers, 
and  made  dependent  upon  the  crown.  And  such  was  the 
fate  of  most  of  the  considerable  corporations  in  England. 
The  whole  power  was  in  the  hands  of  the  king.1 

Nor  were  these  arbitrary  proceedings  confined  to  Eng- 
land. In  16S3  writs  of  quo  warranto  and  scire  facias  were 
issued  for  the  purpose  of  abrogating  the  character  of  Mas- 
sachusetts. Pariotism  and  religion  mingled  their  fervors 
and  combined  in  its  defence,  but  in  vain.  Servile  judges,  in 
June,  1684,  one  year  and  six  days  after  judgment  against 
the  city  of  London,  adjudged  the  charter  to  be  condition- 
ally forfeited  ;  and  the  charter  government  was  displaced, 
and  popular  representation  superseded  by  an  arbitrary 
commission.  In  1687,  similar  writs  were  issued  against  the 
charters  of  Rhode  Island  and  Connecticut ;  when,  as  is  well 
known,  the  people  of  the  latter  colony  unsuccessfully  en- 
deavored to  preserve  this  cherished  muniment  of  their 
liberties  by  concealing  it  in  the  charter  oak.  The  colonies, 
as  a  result  of  the  English  revolution  of  1688,  had  their 
charters  restored.  Very  shortly  after  the  accession  of  William 
and  Mary,  a  bill  to  restore  the  rights  of  those  English  cor- 
porations which  had  surrendered  their  charters  to  the  crown 
during  the  reigns  of  James  II.  and  Charles  II.,  was  intro- 
duced into  parliament  and  became  a  law,  with  the  general 
applause  of  men  of  all  parties.1 

Reference  has  already  been  made  to  the  fact  that  in  the 
time  of  Elizabeth,  the  controlling  power  of  corporations  was 
virtually  vested  in  "select  bodies."  To  remedy  these  and 
many  other  abuses,  the  Municipal  Corporations  Reform  Act 
(5  and  .6  Will.  IV.  c.  76)  was  passed.  This  law  sought  to 
restore  corporations  to  their  original  design,  as  institutions 
for  the  local  government  of  the  place,  to  be  controlled  by 
those  interested  in  it,  and  not  by  a  favored  few.  It  is  un- 
doubtedly true,  as  remarked  by  Mr.  Hallam,   that  f  No 

1  There  were  eighty-one  quo  warmnto  informations  brought  against 
municipal  corporations  by  Charles  II.  and  James  II.  2  Chandl.  Com.  Debs. 
316. 

2  Macaulay's  History  of  England,  vol.  III.  chap.  XV.,  where  a  graphic 
account  of  the  history  of  its  passage  is  given. 


80 


MUNICIPAL     CORPORATIONS. 


[Ch.  I. 


political  institution  can  endure  which  does  not  rivet  itself 
to  the  hearts  of  men  by  ancient  prejudice  or  acknowledged 
interest."  That  is,  it  cannot  permanently  endure,  although 
it  may  exist  long  after  it  ought  to  cease.  If  ever  an  in- 
stitution outlived  its  usefulness — lived  long  after  it  became 
a  positive  evil — it  was  the  municipal  corporations  of  Eng- 
land, prior  to  the  reform  act  just  mentioned,  and  which  be- 
came a  law  as  late  as  1835.  In  many  important  places  in 
England  the  number  of  corporators  ranged  as  low  as  from 
ten  to  thirty.  In  a  large  majority  of  the  municipalities,  the 
coporations  were  close  ;  that  is,  the  governing  body  had  the 
power  to  determine  who  should  be  admitted  to  freedom  or 
membership  ;  and  often  the  privilege  was  conferred  upon 
non-residents  and  the  residents  excluded.  The  most  im- 
portant franchise  they  possessed  was  that  of  electing  mem- 
bers of  parliament,  and  this,  in  many  places,  was  the  princi- 
pal function  of  the  corporation.  Not  only  were  the  councils 
self-elective,  but  their  tenure  was  for  life.  They  were  fre- 
quently controlled  by  a  single  party,  and  all  persons  enter- 
taining other  opinions  were  of  course  excluded.  The  corpo- 
rations were  not  in  sympathy  with,  nor  did  they  reflect  the 
wishes  of,  the  people  over  whom  they  exercised  local  juris- 
diction. There  was  no  check  upon  mal-administration. 
The  property  was  wasted ;  extravagance  characterized  the 
expenditures  of  money ;  officers  were  elected  by  the  irre- 
sponsible councils  from  favoritism  or  devotion  to  party. '  One 
of  the  first  acts  of  the  Reformed  House  of  Commons  was  the 
overthrow,  in  1835,  of  this  intolerable  system,  by  the  passage 
of  the  above-mentioned  Municipal  Corporations  Statute,  to 
which  we  shall  have  frequent  occasion  to  refer  in  the  subse- 
quent pages  of  this  work. 

Lord  Brougham  has  many  titles  to  the  affectionate 
regard  of  posterity.  Few  of  his  claims  are  stronger, 
however,  than  those  which  arise  from  his  faithful  and 
effective  services  in  promoting  the  reform  of  the  Muni- 
cipal Corporations  of  Great  Britian,  by  abolishing  these  self- 
elected  and  perpetual  councils,  and  by  organizing  the  cor- 
porations upon  an  uniform  model,  and  by  establishing  in 
the  act  the  principle  that  the  councils  should  be  selected  for 

1  Glover  on  Corp.  XXXVTII.  et  aeq.;  Report  of  Commissioners  of  Corpo- 
rate Inquiry,  32,  et  seq. 


Oh.  L]  INTRODUCTORY     HISTORICAL     VIEW.  81 

short  and  fixed  periods  by  the  votes  of  the  burgesses,  thus 
recognizing  and  adopting  the  representative  system.  Mr. 
Willcock,  in  concluding  his  treatise,1  had  recommended  a 
similar  reform,  but  disclaimed  being  so  visionary  as  to  sup- 
pose it  would  soon  be  effected,  since  parliament  would  not 
willingly  relinquish  its  influence  over  venal  boroughs,  and 
members  elected  by  corporations  would  not  be  allowed  by 
their  constituents  to  abandon  their  ancient  though  unjust 
privileges  ;  but  within  ten  years  from  the  time  his  language 
was  penned,  the  reform  of  which  he  almost  despaired  was 
accomplished. 

§  9.  In  general,  all  of  our  American  cities,  towns,  and 
counties  are  public  corporations,  full  or  quasi.  They  are 
created  by  the  legislature,  and  are  usually  endowed  with 
power  to  legislate  upon,  decide,  and  control  local  and  sub- 
ordinate matters  pertaining  to  their  respective  localities. 
The  number  and  freedom  of  these  local  organizations, 
whereby  political  power  is  conferred  upon  the  citizens  of 
the  various  local  subdivisions  of  a  state  who  have  a  right  to 
vote  and  to  regulate  their  own  domestic  concerns,  constitute 
a  marked  feature  in  our  free  system  of  government.2  In 
general,  each  road-district,  each  school-district,  each  city 
and  each  county  is,  as  to  local  concerns,  self -governed. 
These  organizations  are,  of  course,  subject  to  the  legisla- 
ture of  the  state,  and  their  acts,  so  far  as  they  affect  private 

1  Willock's  Municipal  Corp.  513,  514.  London,  with  its  "  great  and  not- 
able franchises,  liberties,  and  customs,"  to  treat  of  which,  says  Lord  Coke 
(4  lost.  250),  "would  require  a  whole  volume  of  itself,"  was  not  embraced 
in  the  general  act  of  5  and  6  Will.  4,  chap.  76,  but  there  was  subsequently 
passed  an  important  statute  known  as  the  London  Corporation  Reform  Act 
of  1849.     See  Supplement  toPulling's  Laws,  etc.,  of  London. 

On  the  15th  day  of  August,  1807,  after  a  memorable  struggle  between 
the  lords  and  the  commons,  what  is  known  as  the  Disraeli  Reform  Bill,  be- 
came a  law,  by  which  the  right  to  vote  for  members  of  parliament  for 
boroughs  was  greatly  extended. 

'"In  all  quasi  corporations,  as  cities,  towns,  parishes,  school-districts, 
membership  is  constituted  by  living  within  certain  limits."  Per  Shaw,  C. 
J.,  Overseers  of  Poor,  etc.  v.  Sears,  22  Pick.  122,  130. 

"When  a  man,"  says  Mr.  Justice  Morton,  Oakes  v.  Hill,  10  Pick.  333, 
846,   "  moves  into  a  town,  he  becomes  a  citizen  thereof  (if  possessed  of  the 
requisite  qualifications  as  to  age,  etc.,  and  if  he  remains  the  requisite  length 
of  time)  whatever  may  be  the  desire  of  himself  or  the  town."' 
6 


82  MUNICIPAL     CORPORATIONS.  [Ch.  I. 

rights,  are  also  the  subjects  of  judicial  cognizance  and  re- 
view. The  policy  of  creating  local  public  and  municipal 
corporations  for  the  management  of  matters  of  local  con- 
cern, runs  back  to  an  early  period  in  our  colonial  history, 
is  exhibited  in  all  our  legislation,  and  expressly  or  im- 
pliedly guaranteed  in  our  state  constitutions.1 

The  elective  franchise  in  these  "local  republics"  is  not, 
as  was  the  case  until  recently  in  England,  a  privilege  de- 
pendent upon  custom  or  usage,  or  confined  to  certain 
classes,  but  is  uniform  and  universal,  extending  to  all  of  the 
adult  male  citizens.  Old  sarums  and  rotten  boroughs,  as 
well  as  property  qualifications,  are  unknown.  The  effect  of 
this  policy  of  establishing  cities,  towns,  and  districts  of 
country  into  bodies  politic  and  investing  the  citizens  thereof 
with  the  power  of  self-government,  has,  upon  the  whole, 
been  most  happy. 

It  has  been  noticed  by  Chancellor  Kent,"  that  one  of  the 
most  philosophical  and  fair  of  foreign  observers  3  was  much 

1  Kent  Com.  275 ;  Cooley  Const.  Limit,  chap.  8.  See  also  this  learned 
author's  recent  opinion  in  the  Supreme  Court  of  Michigan,  in  the  People 
v.  Hurlburt,  24  Mich.  44,  1871.  State  <o.  Noyes,  10  Fost.  (N.  H.)  292; 
Bow  v.  Allenstown,  34  N.  H.  351;  Caldwell  v.  Justices,  etc.,  4  Jones  (Nor. 
Car.)  Eq.  323;  Comw.  v.  Roxbury,  9  Gray,  503,510,  511,  note,  written  by 
Mr.  Gray,  now  one  of  the  justices  of  the  Supreme  Judicial  Court  of  Massa- 
chusetts; Webster  v.  Hawrington,  32  Conn.  131.  In  Mr.  Quincy's  Muni- 
cipal History  of  Boston,  chap.  I.  will  be  found  an  interesting  historical  ac- 
count of  the  constitution  of  towns  in  Massachusetts,  and  of  their  mode  of 
organization  and  operation — particularly  of  the  town  of  Boston. 

8  2  Kent  Com.- 275,  note. 

*M.  De  Tocqueville,  Democracy  in  America  :  "  Local  assemblies  of  citi- 
zens constitute  the  strength  of  free  nations.  Municipal  institutions  are  to 
liberty  what  primary  schools  are  to  science;  they  bring  it  within  the  peo- 
ple's reach ;  they  teach  men  how  to  use  and  how  to  enjoy  it.  A  nation 
may  establish  a  system  of  free  government,  but  without  the  spirit  of  muni- 
cipal institutions  it  cannot  have  the  spirit  of  liberty."  M.  De  Tocqueville's 
Democracy  in  America,  chap.  V. 

"From  time  immemorial,"  says  one  of  the  ablest  of  American  common 
.aw  judges,  "the  counties,  parishes,  towns  and  territorial  subdivisions  of 
the  country,  have  been  allowed  in  England,  and,  indeed,  required,  to  lay 
rates  on  themselves  for  local  purposes.  It  is  most  convenient  that  the  local 
establishments  and  police  should  be  sustained  in  that  manner;  and,  indeed, 
to  the  interest  taken  in  them  by  the  inhabitants  of  the  particular  districts, 
and  the  information  upon  law  and  public  matters  generally,  thereby  dif- 
fused through  the  body  of  the  people,  has  been  attributed  by  profound 
thinkers  much  of  that  spirit  of  liberty  and   capacity  for  self-government, 


Cn.  I.]  INTRODUCTORY     HISTORICAL     VIEW.  83 

struck  with  the  institutions  of  New  England  towns  ;  and 
considered  them  as  small  independent  republics,  in  all 
matters  of  local  concern,  and  as  forming  the  principle  of 
the  life  of  American  liberty  existing  at  this  day. 

The  value  of  our  system  of  municipal  institutions,  to 
which  we  have  thus  alluded,  may  be  seen  on  comparing  the 
political  condition  of  the  people  of  the  United  States  with 
that  of  the  people  of  modern  France — selected  as  a  fair  ex- 
ample of  a  government  without  municipal  freedom.  France 
is  a  highly  centralized  government.  The  state  there  is  every- 
thing ;  the  people,  nothing.  Municipal  institutions,  with  a 
democratic  element,  or  with  the  power  of  independent  local 
self-government,  belong,  there,  to  the  past.  The  central 
power  governs  and  regulates  everything.  It  provides  amuse- 
ments, constructs  roads,  bridges,  internal  improvements, 
controls  trade,  inspects  manufactures.  The  effects  of  this 
system  are  thus  stated  :  "Develop  in  the  slightest  degree  a 
Frenchman's  mental  faculties,  and  he  flies  to  a  town  as 
surely  as  steel  filings  fly  to  a  loadstone.  From  all  parts  of 
France  men  of  great  energy  and  resource  struggle  up  and 
fling  themselves  on  the  world  of  Paris.  There  they  try  to 
become  great  functionaries.  Through  every  department  of 
the  eighty-four,  men  of  less  energy  and  resource  struggle  up 
to  the  provincial  capital.  All  who  have,  or  think  they  have, 
heads  on  their  shoulders,  struggle  into  town  to  fight  for 
office  which  the  government  alone  can  confer.  The  whole 
energy  and  knowledge  and  resource  of  the  land  are  barreled 

through  representatives,  which  has  been  so  conspicuous  in  the  mother 
country,  and  which  so  eminently  distinguishes  the  people  of  America. 
From  the  foundation  of  our  government,  colonial  and  republican,  the 
necessary  sums  for  local  purposes  have  been  raised  by  the  people  or  au- 
thorities at  home.  Court-houses,  prisons,  bridges,  poor-houses  and  the  like, 
are  thus  built  and  kept  up,  and  the  expenses  of  maintaining  the  poor,  and 
of  prosecutions  and  jurors,  are  thus  defrayed,  and  of  late  (in  North  Caro- 
lina), a  portion  of  the  common  school  fund,  and  a  provision  for  the  indi- 
gent insane  are  thus  raised,  while  the  highways  are  altogether  constructed, 
and  repaired  by  local  labor,  distributed  under  the  orders  of  the  county 
magistrates.  When,  therefore,  the  constitution  vests  the  legislative  power 
in  the  General  Assembly,  it  must  be  understood  to  mean  that  power  as  it 
had  been  exercised  by  our  forefathers,  before  and  after  their  migration  to 
this  continent."  I>eT Ituffin,  J.,  in  Caldwell  v.  Justices,  etc.,  4  Jones  (N. 
Car.)  Eq.  :«8,  1858. 


84  MUNICIPAL     CORPORATIONS.  [Ch.  i. 

up  in  the  towns— all  between  towns  is  utter  intellectual  bar- 
renness." 

Such  are  the  withering  effects  of  a  centralized  despotism.1 
How  different  with  the  decentralized  system  of  government 
in  the  United  States,  where  each  local  constituency  chooses 
its  own  officers — each  road-district,  school-district,  village, 
town,  city,  and  county  administers  its  own  affairs  by  the 
people  and  for  the  people.8 

To  civil  territorial  divisions,  erected  into  corporations 
with  defined  powers  of  local  administration,  and  the  exten- 

1  The  foregoing  was  written  prior  to  the  dethronement  of  Napoleon  III. 
and  the  communist  insurrection.  The  commune  movement  was  but  the 
natural  result  of  a  popular  uprising  against  centralized  power.  But  it  went 
to  the  other  extreme,  and  contemplated,  without  a  national  compact,  a  league 
of  36,000  independent  communes.  Their  declared  scheme  was  this  : 
"France  shall  no  longer  be  one  and  indivisible,  empire  or  republic;  she 
shall  form  a  federation,  not  of  small  states  or  provinces,  but  of  free  cities, 
linked  together  only  so  far  as  shall  be  consistent  with  the  most  absolute  de- 
centralization and  local  government."  {Journal  Ojficiel  de  la  Commune, 
April,  1871.)  But  a  scheme  which  made  cities,  and  not  the  nation,  prac- 
tically the  sovereign,  is  radically  defective,  and  open  to  all  the  objections 
which  M.  Mazzini  has  so  forcibly  pointed  out  against  it.  (Contemporary 
Review,  1871 :  reprinted  Littell's  Living  Age,  July,  1871,  p.  112.) 

2  Barrett  v.  Brooks,  21  Iowa,  144,  151.  By  constitutional  provision  in 
New  York,  "It  belongs,  exclusively,  to  the  local  power  to  fill  the  offices, 
either  by  election  or  appointment,  as  the  legislature  may  direct."  Met. 
Bd.  Health  v.  Heister,  37  N.  Y.  661,  667.  See  also  constitution  of  Illinois, 
art.  EX.  sec.  5 :   construed,  People  v.  Chicago,  51  111.  17,  1869. 

Speaking  of  the  power  of  creating  debts  and  expending  money  by  the 
city  of  Philadelphia,  under  the  Consolidation  Act  of  1854,  in  a  case  where 
it  was  held  that  this  power  had  been  invested  in  the  legislative  department, 
and  not  with  subordinate  officers,  Agnew,  J.,  observed:  "It  is  manifest  that 
the  city  government  is  founded,  in  its  leading  thought,  upon  the  American 
idea  of  a  popular  representative  government,  its  immediate  prototype  being 
the  form  of  the  state  government.  The  right  of  supervision  and  control  is 
therefore  vested  in  the  councils  as  the  immediate  representatives  of  the 
popular  will,  which  exerts  and  enforces  its  determining  power  by  means  of 
constantly  recurring  elections.  Subject  to  this  primary  power  the  affairs  of 
this  people,  great  in  numbers,  wealth,  intelligence,  and  influence,  are  con- 
ducted by  departments  and  officers."  Philadelphia  v.  Flanigen,  47  Pa.  St. 
21,  1864. 

"What,"  inquired  the  Abbe  Sieyes,  in  a  book  which  gave  a  powerful 
impulse  to  the  public  mind  at  the  beginning  of  the  French  revolution  of 
1789— "What  is  the  tiers  etatV  And  he  answered,  "Nothing."  What 
ought  it  to  be?  "Everything."  Thiers's  French  Rev.  vol.1,  p.  27;  Guizot 
Hist.  Civ.  Lect.  "VTI.     On  this  popular  foundation  rests  not  only  our  na- 


Ch.   1  J  INTRODUCTORY    HISTORICAL    VIEW.  85 

sion  of  the  right  to  vote  for  officers,  to  all  who  are  to  be 
affected  by  their  action,  are  due  that  familiarity  with  pub- 
lic affairs  and  that  love  of  liberty  and  regard  for  private 
rights  and  property,  which  are  characteristic  of  the  best 
government  in  Europe,  Great  Britain,  and  the  best  in 
America,  the  United  States.1 

But  the  picture  is  not  without  its  shadows.  There  are 
evils  either  inherent  in  our  municipal  corporations,  or  which 
so  generally  attend  their  administration  as  to  favor  the 
notion  that  they  are  inherent,  which  have  greatly  detracted 
from  their  value.  Some  of  these  may  be  briefly  indicated  : 
1.  Men  the  test  fitted  by  their  intelligence,  business  experi- 
ence, capacity,  and  moral  character,  for  local  governors  or 
counsellors,  are  not  always,  it  is  feared  it  might  be  added, 
are  not  generally,  chosen.  2.  Those  chosen  are  too  apt  to 
merge  their  individual  conscience  in  their  corporate  capac- 
ity. Under  the  shield  of  their  corporate  character  men 
daily  do  acts  which  they  would  never  do  as  individuals. 

tional  government,  but  as  well  all  of  our  state  governments  and  municipal 
institutions. 

1  After  alluding  to  the  antiquity  of  this  system  in  England,  Mr.  Justice 
Broicn,  in  the  important  case  of  The  People  v.  Draper  (15  N.  Y.  532,  562), 
says :  "  "Wherever  the  Anglo-Saxon  race  have  gone,  wherever  they  have 
carried  their  language  and  laws,  these  communities,  each  with  a  local  ad- 
ministration of  its  own  selection,  have  gone  with  them.  It  is  here  that  they 
have  acquired  the  habits  of  subordination  and  obedience  to  the  laws,  of 
patient  endurance,  resolute  purpose,  and  knowledge  of  civil  government, 
which  distinguish  them  from  every  other  people.  Here  have  been  the  seats 
of  modern  civilization,  the  nurseries  of  public  spirit,  and  the  centres  of 
constitutional  liberty.  They  are  the  opposites  of  those  systems  which  col- 
lect all  power  at  a  common  centre,  to  be  wielded  by  a  common  will,  and  to 
effect  a  given  purpose,  which  absorb  all  political  authority,  exercise  all  its 
functions,  distribute  all  its  patronage,  repress  the  public  activity,  stifle  the 
public  voice,  and  crush  out  the  public  liberty."  "The  city  corporations," 
remarks  a  modern  jurist,  "  which  have  grown  up  in  modern  times,  are  of 
infinite  advantage  to  society ;  they  bind  men  more  closely  together  than 
does  any  other  form  of  political  association.  But  that  which  most  remark- 
ably distinguishes  them  from  the  close  corporations  which  formerly  existed, 
is  the  general  spirit  of  freedom  which  has  been  breathed  into  them.  More 
especially  is  this  the  case  with  town  corporations  in  America,  which  are  as 
different  from  those  of  England  as  the  latter  are  from  similar  corporations 
in  Scotland  and  Holland."  Per  Grimke,  J.,  Rosebaugh  v.  Saffin,  10  Ohio, 
31,  3G;  see  also  State  v.  Noyes,  10  Fost.  (N.  H.)  292. 


86  MUNICIPAL     CORPORATIONS.  [Ch.  I. 

The  public,  as  if  to  retaliate,  act  towards  corporations  in  the 
same  spirit.  The  notion,  though  not  avowed,  is  by  far  too 
much  acted  upon,  that  all  that  can  be  obtained  from  a  pub- 
lic, or,  indeed,  from  any  corporation,  is  legitimate  spoil. 
Against  these,  men  usually  honest  and  fair  in  their  deal- 
ings, do  not  scruple  to  make  demands  which  they  would 
never  make  against  an  individual.1  3.  As  a  result,  the  ad- 
ministration of  the  affairs  of  our  municipal  corporations  is 
too  often  both  unwise  and  extravagant. 

Municipal  corporations  are  institutions  designed  for  the 
local  government  of  towns  and  cities  ;  or,  more  accurately, 
towns  and  cities,  with  their  inhabitants,  are,  for  purposes  of 
subordinate  local  administration,  invested  with  a  corporate 
character.  To  clothe  them  with  powers  to  accomplish 
purposes  which  can  better  be  left  to  private  enterprise, 
is  unwise.  Their  chief  function  should  be  to  regulate 
and  govern.  To  invest  them  with  the  powers  of  indi- 
viduals or  private  corporations,  for  objects  not  pertain- 
ing to  municipal  rule,  is  to  perverc  the  institution  from 
its  legitimate  ends,  and  to  require  of  it  duties  it  is  not 
adapted  satisfactorily  to  execute.  Some  of  the  evil  effects 
of  municipal  rule  have  arisen  from  legislation  unwisely 
conferring  upon  municipalities,  at  the  suggestion,  often, 
of  interested  individuals  or  corporations,  powers  foreign 
to  the  nature  of  these  institutions,  and  not  necessary  to 
enable  them  to  discharge  the  appropriate  functions  and 
duties  of  municipal  administration.  Among  the  most  con- 
spicuous instances  of  such  legislation  may  be  mentioned  the 
power  to  aid  in  the  building  of  railways,  to  incur  debts, 
often  without  any  limit,  or  any  which  is  effectual,  and  to 
issue  negotiable  securities.  The  result  has  too  often  been 
that  debts  are  incurred  so  large  that  they  press  with  disas- 
trous weight  on  the  municipality  and  its  citizens.  Extraor- 
dinary and  extra-municipal   powers  have  been  too  often 

1  These  effects  are  not  confined  to  this  side  of  the  Atlantic.  "  It  is  a 
familiar  fact,"  says  Mr.  Herbert  Spencer,  "  that  the  corporate  conscience  is 
ever  inferior  to  the  individual  conscience — that  a  body  of  men  will  commit, 
as  a  joint  act,  that  which  every  individual  of  them  would  shrink  from,  did 
he  feel  personally  responsible."  Essays,  No.  VII.  p.  261,  Am  Ed.  1865;  and 
see  lb.  Essays,  No.  V.  for  a  description— perhaps  too  highly  colored — of 
the  unsatisfactorv  working  of  the  English  reformed  municipal  corporations. 


Ch.  1.1  INTRODUCTORY     HISTORICAL    VIEW.  87 

incautiously  or  unwisely  granted,  and  the  charters  or  con- 
stituent acts  carelessly  worded  and  loosely  construed.  The 
remedy  suggested  by  experience  consists,  in  part,  in  con- 
stitutional provisions  prohibiting  the  granting  of  special 
charters,  and  requiring  all  municipal  corporations  to  be  or- 
ganized under  general  laws.  The  legislature  should  also  be 
prohibited  from  allowing  municipal  corporations  to  engage 
in  extra-municipal  projects,  or  to  incur  debts  or  levy  taxes 
for  such  purposes.  The  powers  granted  to  such  corporations, 
and  especially  the  power  to  levy  taxes,  should  be  more  care- 
fully deiined  and  limited,  and  should  embrace  such  objects 
only  as  are  necessary  for  the  health,  welfare,  safety,  and  con- 
venience of  the  inhabitants.1  The  amount  of  indebtedness 
that  may  be  incurred,  even  for  municipal  purposes,  should 
also  be  limited  beyond  the  power  to  be  evaded. 

Experience  has  also  demonstrated  the  necessity  of  more 
power  and  more  responsibility  in  the  executive  head  of  our 
municipal  institutions.  Too  often  the  duties  of  the  mayor 
or  executive  officer  are  only  nominal,  and  to  these  he  gives 
but  little  attention — a  natural  result  of  his  want  of  import- 
ance, and  of  his  inability  to  control  the  administration  of 
municipal  affairs.  If  the  office  be  clothed  with  dignity  aud 
real  authority ;  if  the  mayor  shall  be  invested  with  the 
veto  power  ;  if  he  shall  have  the  sole  right  to  appoint  and 

1  The  great  increase  of  corruptions  in  municipal  bodies,  growing  out  of 
the  ability  to  create,  by  taxation,  a  fund  which  may  be  squandered,  has 
made  many  thinking  men  doubt  the  wisdom  of  endowing  them  with  the 
power;"  Mr.  Justice  Miller,  in  Rusch  v.  Des  Moines  County,  1  Woolw.  C.  C. 
313,  322,  1868.  And  note  the  striking  observations  of  Mr.  Justice  Agnew, 
on  the  abuses  which  attend  the  administration  of  finances  by  municipal 
bodies  and  officers,  and  the  too  prevalent  frauds  in  the  procurement  and 
execution  of  public  contracts;  Philadelphia  v.  Flanigen,  47  Pa.  St.  21; 
Hague  v.  Philadelphia,  48  lb.  527.  In  the  case  first  cited,  the  suggestion  of 
the  text  as  to  the  wisdom  of  strictly  guarding  and  limiting  the  power  to 
create  debts,  is  well  enforced  by  this  learned  judge.  He  truly  says:  "A 
valid  contract  is  uncontrollable;  demanding  its  performance  at  the  hands  of 
the  judiciary,  and  calling  to  their  aid  the  whole  power  of  the  government. 
If  an  appropriation  for  its  payment  is  not  made  this  year,  it  must  be  in  the 
next  or  some  following."  The  gigantic  and  astounding  frauds  and  corrup- 
tion which  have  been  recently  revealed  (1871)  in  the  local  administration 
of  the  affairs  of  the  great  city  of  New  York  have  awakened  public  atten- 
tion to  the  necessity  of  more  efficient  checks  upon  the  misuse  of  municipal 
powers. 


88  MUNICIPAL     CORPORATIONS.  [Ch.  I. 

the  unrestricted  power  to  suspend  or  remove  subordinate 
officials  or  heads  of  departments,  then  the  citizens  can 
justly  demand  of  him  that  he  shall  be  individually  respon- 
sible for  the  proper  conduct  of  the  concerns  of  the  munici- 
pality, and  if  grievances  exist,  they  will  know  to  whom  to 
apply  for  remedy,  or  upon  whom  to  fix  the  blame.1 

Municipal  corporations,  as  they  exist  in  this  country,  it 
may  be  further  suggested,  are  of  exceedingly  complex 
character.  Not  here  to  allude  to  the  legal  complexity  which 
arises  from  their  corporate  nature,  we  may  mention  that 
which  arises  from  the  exceedingly  diverse  character  of  the 

1  Extended  observation  of  the  workings  of  our  municipal  institutions 
has  satisfied  the  author  that  the  views  expressed  in  the  text  are  sound,  and 
he  is  glad  to  find  them  confirmed  by  the  Hon.  Josiah  Quincy  in  his  "  Muni- 
cipal History  of  Boston,"  published  in  1852.  Mr.  Quincy  was  mayor  of 
the  city  of  Boston  from  1823  to  1828,  inclusive,  and  his  opinions  are  entitled 
to  great  respect,  not  only  from  his  known  ability,  but  large  experience  in 
municipal  affairs.  It  is  interesting  to  observe  the  striking  coincidence  of 
his  views  with  the  recommendations  of  the  "Committee  of  Seventy,"  of 
New  York,  respecting  municipal  administration  and  the  importance  of 
efficient  executive  superintendence,  control,  and  responsibility.  Municipal 
Hist,  of  Boston,  chap.  V.  And  to  same  effect  is  Mr.  Charles  NordhofPs 
interesting  article  in  the  North  American  Review  for  October,  1871,  entitled, 
"The  Misgovernment  of  New  York, — A  Remedy  Suggested."  This  vigor- 
ous writer  sketches  the  defects  in  the  ordinary  municipal  charters  with  a 
masterly  hand,  and  shows  great  familiarity  with  the  subject  of  which  he 
treats.     Many  of  his  suggestions  may  be  profitably  studied  by  the  legislator. 

In  the  Galaxy  Magazine  for  February,  1872,  the  article  just  mentioned 
is  reviewed  by  Mr.  Isaac  Butts,  who  contends  that  the  only  efficient  cure  for 
municipal  evils  is  to  assimilate  local  government  to  that  of  private  corpora- 
tions, giving  the  real  and  ultimate  control  of  all  municipal  affairs  except 
education  and  the  support  of  the  poor,  to  the  property  interests  of  the 
municipality.  He  maintains  that  a  "  municipality  is  essentially  a  moneyed 
corporation  rather  than  a  political  community  or  a  diminutive  state."  He 
insists  that  "  the  basis  of  municipal  authority  should  be  changed  in  some- 
thing like  the  manner  following:  1st.  Let  every  person  cast  one  vote,  as  at 
present.  2d.  In  addition  to  the  above,  let  every  person,  corporation,  and 
firm,  without  regard  to  residence  or  sex,   cast  one  vote,  in  person  or  by 

proxy,  for  every  § for  which  they  respectively  were  assessed  on  the 

last  general  assessment  roll  of  the  city.  3d.  A  plurality  of  the  aggregate 
vote  to  elect." 

It  may  be  observed,  that  in  England,  under  the  reformed  municipal  sys- 
tem, the  right  to  a  voice  in  municipal  management  is  restricted  to  occupiers 
of  houses  and  tax-payers,  and  yet  we  have,  as  we  have  seen,  complaints  of 
municipal  extravagance,  corruption,  and  abuse. 


Ch.  I.]  introductory    historical    VIEW.  89 

multiform  duties  which  are  confided  to  their  agency  and 
management,  requiring  the  delegation  of  corresponding 
powers  and  provisions  for  their  execution.  Some  of  these 
powers  are  civil  or  political,  and  not  peculiar  to  the  people 
of  the  municipality  ;  others  are  purely  local,  of  which  some 
concern  all  the  inhabitants  and  some  affect  only,  or  mainly, 
the  property  owners,  on  whom,  exclusively,  the  burden  of 
their  exercise,  or  administration,  falls.  In  the  ordinary 
municipal  charters,  the  essential  differences  between  these 
powers  have  not  been  regarded,  and,  in  consequence,  ade- 
quate checks  upon  their  abuse  have  not  been  provided. 

The  general  right  of  suffrage  will  remain,  and,  in  the 
author's  judgment,  ought  to  remain  as  extensive  in  the 
municipality  as  in  the  state,  and  all  schemes  of  municipal 
reform  based  upon  restricting  it  are  simply  impracticable. 
But  if  special  or  extra-municipal  powers  be  granted,  not  af- 
fecting civil,  political,  or  other  rights  which  concern  all,  but 
which  involve  directly  the  expenditure  and  payment  of 
money,  it  is  but  just  that  the  project  should  be  required  to 
have  the  support  of  a  majority  of  those  who  must  pay  the 
expense. 

No  small  proportion  of  corruption  and  abuse  in  munici- 
palities has  had  its  source  in  their  authority  to  make  public 
and  local  improvements.  The  power  is  usually  conferred 
without  sufficient  care,  and  the  rights  of  the  property  owners 
(often  made  liable  for  the  whole  cost  of  the  improvement  or 
amount  of  the  expenditure)  not  sufficiently  respected  and 
guarded. 

As  it  is  the  part  of  wisdom  to  organize  municipal  corpo- 
rations under  general  laws,  so  that  defects  and  abuses,  being 
generally  seen  and  felt,  will  be  the  more  speedily  and  better 
remedied  by  the  legislature,  so  municipal  corporations 
should  be  shorn  of  the  power  to  grant  special  privileges, 
except  under  ordinances,  general  in  their  character,  and 
which,  on  equal  or  fair  terms,  will  make  them  available  to  all. 
The  courts,  too,  have  duties,  the  most  important  of  which 
is  to  require  these  corporations,  in  all  cases,  to  show  a  plain 
and  clear  grant  for  the  authority  they  assume  to  exercise  ; 
to  lean  against  constructive  powers,  and,  with  firm  hands, 
to  hold  them  and  their  officers  within  chartered  limits. 

But  with  all  the  drawbacks  we  have  mentioned  (many  of 


90  MUNICIPAL     CORPORATIONS.  [Ch.  I. 

which  are  remediable)  our  system  of  popular  municipal  organ- 
ization and  administration  is,  beyond  controversy,  the  fairest 
to  the  individual  citizen,  and,  on  the  whole,  the  most  satis- 
factory in  its  operations  and  results  of  any  that  has  yet  been 
devised.  Any  other  conclusion  would  be  equivalent  to  ad- 
mitting that  the  people  are  incapable  of  enlightened  self- 
government  ;  that  holders  of  property  ought  alone  to  be  re- 
spected, and  alone  be  endowed  with  political  and  municipal 
rights  ;  that  the  few  should  govern  the  many,  and  that  our 
representative  system,  the  flower  of  modem  civilization, 
based  upon  the  equal  right  of  every  man  to  a  voice  in  the 
local  and  general  government,  is  a  failure.  It  is  not  improb- 
able that  we  sometimes  over-estimate  the  shortcomings  in 
the  practical  workings  of  our  municipal  system,  for  the  sys- 
tem is  an  open  one,  in  which  all  are  interested  to  bring  its 
abuses  into  the  light  of  day.  The  fine  observation  of  Lord 
Bacon  fitly  applies:  "The  best  governments  are  always 
subject  to  be  like  the  fairest  crystals,  wherein  every  icicle 
or  grain  is  seen,  which  in  a  fouler  stone  is  never  per- 
ceived." 


Ch.  II.1     CORPORATIONS     DEFINED     AND     CLASSIFIED.  91 


CHAPTER    II. 

Corporations  Defined  and  Classified. 

§  9a.  A  corporation  is  a  legal  institution,  devised  to  con- 
fer upon  the  individuals  of  which  it  is  composed  powers, 
privileges,  and  immunities  which  they  would  not  otherwise 
possess,  the  most  important  of  which  are  continuous  legal 
identity  and  perpetual  or  indefinite  succession,  under  the 
corporate  name,  notwithstanding  successive  changes,  by 
death  or  otherwise,  in  the  corporators  or  members  of  the 
corporation.  It  conveys,  perhaps,  as  intelligible  an  idea  as 
can  be  given  by  a  brief  definition  to  say,  that  a  corporation 
is  a  legal  person,  with  a  special  name,  and  composed  of 
such  members,  and  endowed  with  such  powers,  and  such 
only,  as  the  law  prescribes.  The  most  accurate  notions  of 
complex  subjects  come  not  from  definition,  but  description  ; 
and  in  the  course  of  the  present  work  we  shall  describe  the 
class  of  corporations  with  which  it  deals,  by  their  creation, 
constitution,  faculties,  powers,  duties,  liabilities,  and  pur- 
poses. Some  of  the  definitions  and  deductions  in  the  earlier 
reports  amuse  by  their  quaintness,  but  are  without  much 
practical  value.  "As  touching  corporations,"  says  Lord 
Coke,  "the  opinion  of  Manwood,  chief  baron,  was  this: 
that  they  were  invisible,  immortal,  having  no  conscience  or 
soul ;  and,  therefore,  no  subpoena  lieth  against  them  ;  they 
cannot  speak,  nor  appear  in  person,  but  by  attorney."1 

Chief  Justice  Marshall  s  description  of  a  corporation  is 
remarkable  for  its  general  accuracy  and  felicitous  expres- 
sion:  "A  corporation  is  an  artificial  being,  invisible, 
intangible,  and  existing  only  in  contemplation  of  law. 
Being  the  mere  creature  of  the  law,  it  possesses  only  those 
properties  which  the  charter  of  its  creation  confers  upon  it, 
either  expressly  or  as  incidental  to  its  very  existence.  These 
are  such  as  are  supposed  to  be  best  calculated  to  effect  the 

1  2  Bulst.  233;  WUlc.  Corp.  15. 


92  MUNICIPAL     CORPORATIONS.  [Ch.   II. 

object  for  which  it  is  created.  Among  the  most  important 
are  immortality  [in  the  legal  sense  that  it  may  be  made 
capable  of  indefinite  duration],  and,  if  the  expression  may 
be  allowed,  individuality — properties  by  which  a  perpetual 
succession  of  many  persons  are  considered  as  the  same,  and 
may  act  as  a  single  individual.  They  enable  a  corporation 
to  manage  its  own  affairs,  and  to  hold  property  without  the 
perplexing  intricacy,  the  hazardous  and  endless  necessity  of 
perpetual  conveyances  for  the  purpose  of  transmitting  it 
from  hand  to  hand.  It  is  chiefly  for  the  purpose  of  clothing 
bodies  of  men,  in  succession,  with  these  qualities  and 
capacities,  that  corporations  were  invented  and  are  in  use. 
By  these  means  a  perpetual  succession  of  individuals  are 
capable  of  acting  for  the  promotion  of  the  particular  object 
like  one  immortal  being."1  Thus,  though  the  members 
change,  the  corporation  itself  remains,  in  its  legal  person- 
ality, the  same,  all  of  its  members,  past  and  present,  con- 
stituting, in  law,  but  one  person,  in  the  same  manner  as  the 
Thames,  or  the  Mississippi,  is  still  the  same  river,  though 
the  parts  composing  it  are  constantly  changing.2  The  above 
observations  are,  in  general,  applicable  to  all  corporations, 
private  as  well  as  public  and  municipal. 

§  9b.  Municipal  corporations  are  bodies  politic  and 
corporate  of  the  general  character  above  described,  estab- 
lished by  law,  to  share  in  the  civil  government  of  the  country, 
but  chiefly  to  regulate  and  administer  the  local  or  internal 
affairs  of  the  city,  town,  or  district  which  is  incorporated.* 

1  Dartmouth  College  v.  Woodward,  4  Wheat.  636,  1819.  Other  defini- 
tions:  4  Black.  Com.  37;  1  Kyd  Corp.  13;  Grant  Corp.  3,  4;  Angell  &  Am. 
Corp.  sec.  1 ;  Glover  Corp.  3,  6.  Willcock  declines  to  define,  but  describes 
corporations:  Munic.  Corp.  15.  The  last  author  observes  that  "  A  corpora- 
tion continues  the  same  body  politic  from  its  creation  to  its  dissolution, 
unaltered  by  the  revolution  of  ages  or  the  successive  changes  of  its  mem- 
bers, so  that  it  is  unnecessary  to  make  grants  to  them  and  their  successors, 
or  to  declare  their  obligations  binding  on  their  successors."  lb.  16;  Glover, 
8;  Grant,  5;  7  Vin.  Abr.  358,  363. 

2  Glover,  8 ;  1  Black.  Com.  468. 

3  "A  pody  politic,"  says  Lord  Coke,  "is  a  body  to  take  in  succession, 
framed  as  to  its  capacity  by  policy,  and  therefore  is  called  by  Littleton  (sec. 
413)  a  body  politic ;  it  is  called  a  corporation,  or  body  corporate,  because  the 
persons  are  made  into  a  body,  and  are  of  capacity  to  take,  grant,  &c,  by  a 
particular  name.     Viner's  Abr.  Corp.(«  2).     A  municipal  corporation  is  also 


Ch.  IL]    corporations   defined   and    classified.         93 

Like  other  corporations,  they  must  be  created  by  statute. 
They  possess  no  powers  or  faculties  not  conferred  upon 
them,  either  expressly  or  by  fair  implication,  by  the  law 
which  creates  them,  or  other  statutes  applicable  to  them. 
Persons  residing  in  or  inhabiting  a  place  to  be  incorporated, 
as  well  as  the  place  itself,  are — both  the  persons  and  the 
place — indispensable  to  the  constitution  of  a  municipal  cor- 
poration. Artificial  succession,  also,  is  of  the  essence  of 
such  a  corporation.  Municipal  corporations  are  created 
and  exist  for  the  public  advantage,  and  not  for  the  benefit 
of  their  officers  or  of  particular  individuals  or  classes.  The 
corporation  is  the  artificial  body  created  by  the  law,  and  not 
the  officers,  since  these  are,  from  the  lowest  up  to  the 
councilmen  or  mayor,  the  mere  ministers  of  the  corporation. 
Even  the  council,  or  other  legislative  or  governing  body, 
constitutes,  as  it  has  been  well  remarked,  neither  the  cor- 
poration, nor  in  themselves  a  corporation.1  It  is  quite  im- 
possible, in  any  brief  space,  to  convey  an  adequate  idea  of 
the  exact  nature  and  properties  of  a  municipal  corporation. 
There  is  nothing  in  the  law  more  complex  and  abstruse. 
Although  the  inhabitants  of  a  place  be  incorporated,-  they 
do  not  constitute  the  corporation  ;  neither,  as  we  have  just 
observed,  is  it  constituted  by  the  governing  body.  Not- 
withstanding Mr.  Kyd's  criticism,  the  corporation  is  invisi- 
ble, for,  although  we  may  see  all  the  inhabitants,  or  all  of 
the  officers,  we  do  not  see  the  legal  body  which  makes  the 
corporation  as  we  see  an  army  ;  but  this  is  a  property  com- 
mon to  all  corporations.  An  additional  complexity  in 
municipal  corporations  arises  out  of  the  various  and  diverse 
powers  usually  conferred,  giving  them  an  extremely  compo- 
site character.  The  primary  and  fundamental  idea  of  a 
municipal  corporation  is  an  agency  to  regulate  and  admin- 
ister the  internal  concerns  of  a  locality  in  matters  peculiar 

defined  to  be  "  An  investing  the  people  of  a  place  with  the  local  govern- 
ment thereof."  Salk.  183.  "This  latter  description,"  says  Mr.  Justice 
Nelson,  in  the  People  v.  Morris,  13  Wend.  325,  334,  1835,  "is  the  most 
appropriate,  and  is  justified  by  the  history  of  these  institutions,  and  the 
nature,  of  the  powers  with  which  they  were,  and  are,  invested."  It  is  also 
quoted  by  Campbell,  C.  J.,  in  the  People  v.  Hurlburt,  24  Mich.  44,  1871. 
1  Reg.  v.  Paramore,  10  Ad.  &  El.  286;  Reg.  v.  York,  2  Q.  B.  850; 
Grant,  357 ;  Glover,  4 ;  Harrison  v.  "Williams,  3  Barn.  &  Cress.  162. 


94  MUNICIPAL     CORPORATIONS.  [Ch.  II, 

to  the  place  incorporated,  and  not  common  to  the  state  or 
people  at  large  ;  but  it  is  the  constant  practice  of  the  states 
to  make  use  of  the  incorporated  instrumentality,  or  of  its 
officers,  to  exercise  powers,  perform  duties,  and  execute 
functions  not  strictly  or  properly  local  or  municipal  in  their 
nature,  but  which  are,  in  fact,  state  powers,  exercised  by 
local  officers,  within  defined  territorial  limits  ;  and  it  is  im- 
portant, as  we  shall  hereafter  see,  to  keep  this  distinction 
in  mind.  In  theory,  the  two  classes  of  powers  are  distinct  ; 
but  the  line  which  separates  the  one  from  the  other  is  often 
very  difficult  to  trace.  The  point  may  be  illustrated  from 
the  English  law:  If  the  king  incorporate  a  town,  its  officers 
will  have  no  implied  power  as  conservators  or  justices  of 
the  peace  ;  express  words  are  necessary  to  confer  this 
power,  and  when  they  act  in  the  latter  capacity,  it  is  not 
because  they  are  corporate  officers,  but  because  of  powers 
expressly  annexed  to  their  corporate  offices,  and  the  two 
capacities  remain  distinct,  although  united  in  the  same  per- 
son.1 The  subject  itself  will  be  elsewhere  discussed.  The 
name  of  the  municipal  corporation,  its  boundaries,  its 
officers,  its  poicers,  its  duties,  and  the  like,  are  subjects 
regulated  by  legislative  enactment,  and  will  be  hereafter 
noticed. 

§  10.  Corporations  intended  to  assist  in  the  conduct  of 
local  civil  government  are  sometimes  styled  political,  some- 
times public,  sometimes  civil,  and.  sometimes  municipal,  and 
certain  kinds  of  them  with  very  restricted  powers — quasi 
corporations — all  these  by  way  of  distinction  from  private 
corporations.  All  corporations  intended  as  agencies  in  the 
administration  of  civil  government,  are  public,  as  distin- 
guished from  private  corporations.  Thus  an  incorporated 
school-district,  or  county,  as  well  as  city,  is  a  public  corpo- 
ration ;  but  the  school-district  or  county,  properly  speak- 
ing, is  not,  while  the  city  is,  a  municipal  corporation.  All 
municipal  corporations  are  public  bodies,  created  for  civil 
or  political  purposes ;  but  all  civil,  political  or  public  cor- 
porations are  not,  in  the  proper  use  of  language,  municipal 
corporations.     The  phrase  Municipal  Corporations,  in  the 

1  1  Kyd,  327;  People  v.  Hurlburt,  24  Mich.  44,  1871,  per  Campbell,  C.  J. 
8.  C,  6  Am.  Law  Rev.  376. 


Ch.  II.]     CORPORATIONS    DEFINED     AND     CLASSIFIED.  95 

contemplation  of  this  treatise,  has  reference  to  incorporated 
villages,  towns  and  cities,  as  distinguished  from  other  pub- 
lic corporations,  such  as  counties  and  quasi  corporations.1 

1  Hamilton  Co.  v.  Mighels,  7jphio  St.  109,  1857. 

The  distinction,  as  it  is  usually  drawn  between  municipal  corporations 
proper,  such  as  chartered  towns  and  cities,  or  towns  and  cities  voluntarily 
organized  under  general  incorporating  acts,  such  as  exist  in  a  number  of 
the  states,  and  involuntary  quasi  corporations,  such  as  counties,  is  clearly 
set  forth  in  the  carefully  prepared  opinion  of  Brinkerhoff,  J.,  delivering  the 
judgment  of  the  Supreme  Court  of  Ohio  in  the  case  just  cited.  "Muni- 
cipal corporations  proper  "  he  observes,  "  are  called  into  existence,  either 
at  the  direct  solicitation  or  by  the  free  consent  of  the  persons  composing 
them,  for  the  promotion  of  their  own  local  and  private  advantage  and  con- 
venience." On  the  other  hand,  "Counties  are  at  most  but  local  organiza- 
tions, which,  for  the  purposes  of  civil  administration,  are  invested  with  a 
few  functions  characteristic  of  a  corporate  existence.  They  are  local  sub- 
divisions of  a  state,  created'  by  the  sovereign  power  of  the  state,  of  its  own 
sovereign  will,  without  the  particular  solicitation,  consent,  or  concurrent 
action  of  the  people  who  inhabit  them.  The  former  (municipal)  organiza- 
tion is  asked  for,  or  at  least  assented  to,  by  the  people  it  embraces;  the 
latter  organization  (counties)  is  superimposed  by  a  sovereign  and  paramount 
authority. 

A  municipal  corporation  proper  is  created  mainly  for  the  interest,  ad- 
vantage, and  convenience  of  the  locality  and  its  people ;  a  county  organiza- 
tion is  created  almost  exclusively  with  a  view  to  the  policy  of  the  state  at 
large,  for  purposes  of  political  organization  and  civil  administration,  in 
matters  of  finance,  of  education,  of  provision  for  the  poor,  of  military  or- 
ganization, of  the  means  of  travel  and  transport,  and  especially  for  the 
general  administration  of  justice.  With  scarcely  an  exception,  all  the 
powers  and  functions  of  the  county  organization  have  a  direct  and  exclusive 
reference  to  the  general  policy  of  the  state,  and  are  in  fact,  but  a  branch  of 
the  general  administration  of  that  policy."  The  learned  judge,  adverting 
to  the  case  in  hand,  in  which  it  was  sought  to  make  the  county  liable  in 
damages  to  one  who  suffered  a  personal  injury  from  the  neglect  of  the 
commissioners  of  the  county  in  the  discharge  of  their  official  duties,  says: 
"  But,  it  is  said,  the  members  of  the  board  of  county  commissioners  are 
chosen  by  the  electors  of  the  county,  and  hence  the  board  is  to  be  regarded 
as  the  agents  of  the  county,  for  whose  torts,  in  the  performance  of  official 
duties,  the  county  ought  to  be  responsible.  True,  the  people  of  the 
county  elect  the  board  of  county  commissioners;  but  they  also  elect  the 
sheriff  and  treasurer  of  the  county.  Are  the  people  of  the  county,  there- 
fore, responsible  for  the  malfeasances  in  office  of  the  sheriff  or  for  the  offi- 
cial defalcations  of  the  county  treasurer  ?  This  will  not  be  pretended. 
*****  -yj-Q  cannot  but  think  that  county  commissioners  are  not 
agents  or  representatives  of  the  county  in  any  such  sense  or  manner  as  to 
render  the  people  of  the  county  justly  answerable  for  their  neglect;  even  if 


96  MUNICIPAL     CORPORATIONS.  \Cn.  II. 

§  10a.  Civil  corporations  are  of  different  grades  or  classes, 
bnt  in  essence  and  nature  they  must  all  be  regarded  as  public. 
The  school-district  or  the  road- district  is  invested  with  a  cor- 
porate character  the  better  to  perform  within  and  for  the  local- 
ity its  special  function,  which  is  indicated  by  its  name.  It  is 
but  an  instrumentality  of  the  state,  and  the  state  incorporates 
it  that  it  may  the  more  effectually  discharge  its  appointed 
duty.  So  with  counties.  They  are  involuntary,  political, 
or  civil  divisions  of  the  state,  created  by  general  laws  to  aid 
in  the  administration  of  government.     Their  powers  are  not 

the  neglect  be  such  as  would  create  a  civil  liability  against  a  natural  person 
or  a  municipal  or  private  corporation."  "It  is,"  he  adds,  "undoubtedly 
competent  for  the  legislature  to  make  the  people  of  a  county  liable  for  the 
official  delinquencies  of  the  county  commissioners;  but  this  has  not  yet 
been  done,  and  we  think  such  liability  cannot  be  derived  from  the  relations 
of  the  parries,  either  on  the  principles  or  the  precedents  of  the  common  law." 
Followed,  Jacobs  v.  Hamilton  Co.,  4  Fisher  Pat.  Cases,  81,  1862.  See  also 
Soper  v.  Henry  Co.,  26  Iowa,  264, 1868;  Treadwell  v.  Commissioners,  11  Ohio 
St.  190 ;  Angell  &  Ames,  sees.  14,  23,  24,  25.     Post,  sees.  32,  39,  761,  762. 

Speaking  of  the  powers  of  school-districts  and  their  officers,  Bell,  J.,  in 
Harris  v.  School  District,  8  Foster,  N.  H.  58,  61,  1853,  observes:  "  These 
little  corporations  have  sprung  into  existence  within  a  few  years,  and  their 
corporate  powers  and  those  of  their  officers  are  to  be  settled  by  the  con- 
structions of  the  courts  upon  a  succession  of  crude,  unconnected,  and  often 
experimental,  enactments."  "School-districts,"  he  further  remarks — refer- 
ring to  those  in  New  Hampshire — "are  quasi  corporations  of  the  most 
limited  powers  known  to  the  laws.  They  have  no  powers  derived  from 
usage.  They  have  the  powers  expressly  granted  to  them,  and  such  im- 
plied powers  as  are  necessary  to  enable  them  to  perform  their  duties,  and 
no  more.  Among  them  is  the  power  to  vote  money  for  specified  purposes, 
and  the  power  to  appoint  committees  '  to  carry  their  votes '  relative  to 
those  purposes  'into  effect.'  The  district  may  clearly,  by  their  votes  for 
building  and  repairing  school-houses,  limit  the  expense  to  a  definite 
sum;  and  they  may  limit  the  precise  repairs  or  the  exact  description  of  the 
school-house  to  be  built,  and  when  this  is  done  the  committee  (appointed 
to  '  carry  the  votes  into  effect ')  cannot  bind  the  district  by  exceeding  those 
limits.  These  committees  are  special  agents  without  any  general  powers 
over  the  affairs  of  the  district,  and  their  powers  are  confined  to  a  special 
purpose;  and  no  inference  can  be  drawn  from  the  general  nature  of  their 
powers.  The  liability  of  such  powers  to  abuse,  furnishes  the  strongest 
arguments  against  their  existence,"  as  a  committee  might  load  the  district 
with  debts,  though  the  district  had  expressly  limited  their  authority.  See 
also  Wilson  v.  School  Dist,  32  N.  H.  118,  1855;  Foster  v.  Lane,  10  Foster, 
305,  315;  Giles  v.  School  Dist.,  11  Fost.  304.  Scales©.  Chattahoochee 
County,  31  Geo.  225,  1870. 


Ch.  II.]     CORPORATIONS     DEFINED     AND     CLASSIFIED.  97 

uniform  in  all  the  states,  but  these  generally  relate  to  the 
administration   of   justice,  the   support  of    the   poor,  the 
establishment  and   repair  of  highways,  all  of  which   are 
matters    of    state,   as    distinguished   from    local     concern. 
They  are  purely  auxiliaries  of  the  state  ;  and  to  the  general 
statutes  of  the  state  they  owe  their  creation,  and  the  statutes 
confer  upon  them  all  the  powers  they  possess,  prescribe  all 
the  duties  they  owe,  and  impose  all  liabilities  to  which  they 
are  subject.     Considered  with  respect  to  the  limited  number 
of  their  corporate  powers,  the  bodies  above  named  rank  low 
down  in  the  scale  or  grade  of  corporate  existence ;   and 
hence  have   been  frequently  termed  quasi    corporations. 
This  designation  distinguishes  them  on  the  one  hand  from 
private  corporations  aggregate,  and  on  the  other  from  muni- 
cipal corporations  proper,  such  as  cities  or  towns  acting  under 
charters,  or  incorporating  statutes,  and  which  are  invested 
with  more  powers  and  endowed  with  more  functions  and  a 
larger  measure  of  corporate  life.     It  will  appear  hereafter 
that  many  of  the  courts  have  drawn  a  marked  line  of  dis- 
tinction between  municipal  corporations  and  quasi  corpora- 
tions, in  respect  to  their  liability  to  persons  injured  by  their 
neglect  of  duty  ;  holding  the  former  liable,  without  an  ex- 
press statute  giving  the  action,  in  cases  in  which  the  latter 
are  not  considered  liable  unless  made  so  by  express  legisla- 
tive enactment.     One  reason  often  given  for  the  distinction 
is,  that  with  respect  to  local  or  municipal  powers  proper  (as 
distinguished  from  those  conferred  upon  the  municipality  as 
a  mere  agent  of  the  state)  the  inhabitants  are  to  be  regarded 
as  having  been  clothed  with  them  at  their  request  and  for 
their  peculiar  and  special  advantage,  and  that  as  to  such 
powers  and  the  duties  springing  out  of  them,  the  corpora- 
tion has  a  private  character,  and  is  liable,  on  the  same  prin- 
ciples and  to  the  same  extent  as  a  private  corporation. 
This  subject  will  be  fully  examined  in  its  appropriate  place, 
and  is  only  alluded  to  here  for  the  purpose  of  noting  the 
distinction  which  has  been   made  between  municipal   and 
other  public  corporations.     But  that  a  municipal  corpora- 
tion is  in  any  just  view  a  prioate  corporation,  or  possesses 
a  double  character,  the  one  private  and  the  other  public, 
although   often  asserted,  is  only  true,  if  true  at  all,  in  a 
very  modified,   if  not  inaccurate,  sense.     In  their  nature 
7 


93  MUNICIPAL     CORPORATIONS.  [Ch.  IL 

and  purposes,  municipal  corporations,  however  numerous 
and  complex  their  powers  and  functions,  are  essentially 
public. 

§  11.  The  New  England  Town.— -In  the  New  England 
states,  public  corporations  have,  in  many  respects,  a  pecu- 
liar character.  In  some  instances,  there  are  acts  incorpo- 
rating cities,  giving  them  defined  powers  and  providing  a 
special  mode  of  government ;  but  even  then  the  general  laws 
in  relation  to  towns,  when  not  inconsistent  with  the  provisions 
of  the  local  act,  ordinarily  apply  to  the  places  specially  in- 
corporated. In  the  New  England  town  proper,  the  citizens 
administer  the  general  affairs  in  person,  at  the  stated  cor- 
porate or  town  meetings,  and  through  officers  elected  by 
themselves.1  The  towns  are  charged  with  the  support  of 
schools,  the  relief  of  the  poor,  the  laying  out  and  repair  of 
highways,  and  are  empowered  to  preserve  peace  and  good 
order,  maintain  internal  police,  and  direct  and  manage 
generally,  in  a  manner  not  repugnant  to  the  laws,  of  the 
state,  their  prudential  affairs  ;  and  for  defraying  these  and 
all  necessary  and  lawful  charges,  they  may  levy  and  collect 
taxes.  Speaking  generally,  the  New  England  towns  are 
organized  after  the  same  model ;  and  an  exact  notion  of 
their  character  will  be  best  obtained  by  reference  to  the 
leading  statutory  provisions  in  Massachusetts  respecting 
them,  given  in  the  note.2    The  town  in  New  England,  while 

1  In  toicns,  according  to  the  use  of  the  word  in  the  New  England  states 
and  some  of  the  others,  the  citizens  administer  the  general  affairs  in  person, 
in  town  meetings.  In  cities,  this  is  done  by  means  of  a  mayor,  aldermen, 
and  council,  to  whom  the  citizens  entrust  most  of  the  legislative  and  ex- 
ecutive powers  of  the  place.  State  v.  Glennon,  3  Rh.  Is.  276,  278  per 
Staples,  C.  J.  In  New  England,  "town"  is  a  generic  term,  and  it  will 
embrace  cities,  unless  the  contrary  appears  in  other  parts  of  the  statute  to 
have  been  the  intent  of  the  legislature.     lb. 

5  Summary  of  the  leading  statutory  provisions  in  Massachusetts  respect- 
ing towns: 

1.  As  to  powers  and  duties. — They  are  "  Indies  corporate,  with  all  the 
powers  heretofore  exercised  by  them,  and  subject  to  all  the  duties  to  which 
they  have  heretofore  been  subject."  Genl.  St.  1860,  ch.  XVHL  sec.  1. 
"  Towns  may,  in  their  corporate  capacity,  sue  and  be  sued  in  the  name  of 
the  town."  lb.  sec.  8.  They  may  hold  real  estate  and  personal  property 
"  for  the  public  use  of  the  inhabitants,"  and  also  "in  trust  for  the  support 


Ch.  II.]     CORPORATIONS     DEFINED     AND     CLASSIFIED.  99 

somewhat  anomalous,  has  some  of  the  usual  powers  of  a 
regular  municipal  corporation,  and  some  of  the  characteris- 
tics of  the  county  organizations  in  many  of  the  states.  The 
New  England  town  affords,  perhaps,  an  example  of  as  pure 
a  democracy  as  anywhere  exists.  All  of  the  qualified  in- 
habitants meet  and  directly  act  upon  and  manage,  or  direct 
the  management  of,  their  own  local  concerns.  This  form  of 
government  was  adopted  at  a  very  early  period,  and  is 
firmly  adhered  to  and  deeply  cherished  by  the  people  of  the 
New  England  states.  The  result  has  demonstrated  how  well 
adapted  it  is  to  promote  the  well-being  of  the  communities 
that  for  so  long  a  space  of  time  have  thus  governed  them- 
selves. The  remarkable  growth  and  prosperity  of  the  New 
England  states,  not  the  most  favored  by  nature,  and  the  in- 
telligence and  character  of  the  people,  are  facts  known  to 
all ;  and  it  is  not  strange  that  these  results  should  be  attrib- 

of  schools  and  the  promotion  of  education  within  the  limits  of  the  town." 
lb.  sec.  9.  They  may  make  contracts  necessary  and  convenient  for  the 
exercise  of  their  corporate  powers,"  and  may  dispose  of  their  corporate 
-property.  lb.  sees.  8,  9.  "  They  may,  at  legal  meetings,  grant  and  vote 
such  sums  as  they  judge  necessary,  for  the  following  purposes:  For  the 
support  of  town  schools;  for  the  relief,  &c,  and  employment  of  the  poor ; 
for  the  laying  out  and  discontinuing  and  repair  of  highways  ;  for  procuring 
the  writing  and  publishing  of  town  histories;  for  burial grounds ;  for  encour- 
aging the  destruction  of  noxious  animals  ;  for  all  other  necessary  charges  aris- 
ing therein."  lb.  sec.  10.  "May  make  necessary  by-laws,  not  repugnant 
to  the  laws  of  the  state,  for  directing  and  managing  the  prudential  affairs, 
preserving  the  peace  and  good  order,  and  maintaining  the  internal  police 
thereof."  II.  sec.  11.  But  such  by-laws  must,  before  taking  effect,  be 
approved  by  the  Superior  Court,  or,  in  vacation,  a  judge  thereof.  lb.  sec. 
14.  They  are  binding  upon  all  within  the  limits  of  the  town,  strangers  as 
well  as  inhabitants.     lb.  sec.  15. 

2.  Corporate  or  Town  Meetings. — "Every  male  citizen  of  twenty-one  years 
of  age  and  upwards  (except  paupers,  &c),  who  has  resided  within  the  state 
one  year,  and  within  the  town  in  which  he  claims  the  right  to  vote,  six 
months,  and  who  has  paid  a  state  or  county  tax,  <fec,  shall  have  a  right  to 
vote  upon  all  questions  at  all  meetings  for  the  transaction  of  town  affairs, 
and  no  other  person  shall  be  entitled  to  vote."  lb.  sec.  19.  "The  annual 
meeting  of  each  town  shall  be  held  in  February,  March,  or  April;  and 
other  meetings  at  such  time  as  the  selectmen  may  order."  lb.  sec.  20. 
"Warrants  issue  for  all  meetings,  under  the  hands  of  the  selectmen,  directed 
to  constables  or  others,  who  notify  such  meeting  in  the  manner  prescribed 
by  the  by-laws  or  vote  of  the  town.  lb.  sec.  21.  "The  warrant  shall  ex- 
press the  time  and  place  of  the  meeting,  and  the  subjects  to  be  there  acted 
upon  ;"     *     *     *     "  and  nothing  acted  upon  shall  have  a  legal  operation 


100  MUNICIPAL     CORPORATIONS.  [Ch.  II. 

uted  in  a  large  measure,  to  this  system  of  local  popular  gov- 
ernment. But,  in  the  course  of  time,  many  of  the  towns,  or 
portions  thereof,  grew  to  be  large  and  populous,  and  the 
system  of  meetings  of  the  electors,  in  their  original  capacity, 
became  inconvenient  and  almost  impracticable.  When  the 
population  of  a  town  or  place  exceeds  10,000  or  12,000 
persons,  the  need  for  the  representative  system  is  urgently 
felt.  Accordingly,  in  the  New  England  states,  there  are  now, 
in  addition  to  towns,  a  large  number  of  incorporated  cities, 
with  charters  or  constituent  statutes,  organized  upon  the 
usual  representative  model,  with  a  legislative  or  governing 
body,  and  an  executive  head  and  subordinate  officers.  The 
people  of  the  large  city  of  Boston,  in  particular,  were  wedded 
to  the  town  system,  and  struggled  long  against  the  change  to 
the  representative  plan  ;  and  five  successive  times  between 

unless  the  subject  matter  thereof  is  contained  in  the  warrant."    lb.  sec.  22. 
If  selectmen  unreasonably  refuse  to  call  a  meeting,  any  justice  of  the  peace 
may  do  so  upon  the  application  of  ten  or  more  legal  voters  of  the  town. 
lb.  sec.  23.     Provision  is  made  for  moderating  and  conducting  the  meet- 
ing,    lb.  sees.  25-30.     Town  officers  are  elected  at  the  annual  meeting,  who 
serve  for  one  year,  and  until  others  are  chosen  and  qualified.     These  con- 
sist of  selectmen,  assessors,  treasurer,  constables,  who  are  ex-officio  collect- 
ors unless  others  be  specially  chosen;  field  drivers,  fence  viewers,  surveyors 
of  lumber,  measurers  of  wood,  unless  selectmen  appoint,   "and  all  other 
usual  town  officers."    lb.  sec.  31.    Then  follows  a  variety  of  provisions  re- 
specting the  duties  of  these  several  officers,    and  the  manner  of  their  per- 
formance.   In  addition,  there  are  acts  incorporating  and  establishing  cities. 
"  The  laws  in  relation  to  towns,  where  not  inconsistent  with  the  general  or 
epecial  provisions  of  the  acts  establishing  cities,  apply  to  them;  and  cities 
are  subject  to  the  liabilities,  and  city  councils  have  the  powers  of  towns. 
The  mayor  and  aldermen  shall  have  the  powers  and  be  subject  to  the  lia- 
bilities of  selectmen,   &c,   if  no  other  provisions   are  made  in   relation 
thereto."     General  St.  1860,  ch.  XIX.  166.     "The  marked  and  characteris- 
tic distinction  between  a  town  organization  (in  Massachusetts)  and  that  of  a 
city  is,  that  in  the  former  all  of  the  qualified  inhabitants  meet,  deliberate,  act,- 
and  vote  in  their  natural  and  personal  capacities;  whereas,  under  a  city 
government,  this  is  all  done  by  their  representatives."    Per  Shaw,  C.  J.,  in 
Warren  v.  Charlestown,  2  Gray,  84,  101.     As  to  the  origin  and  power  of 
towns  in  Massachusetts,  consult  Commonwealth  v.  Roxbury,  9  Gray,  451, 
1857,  opinion  of  Shaw,  C.  J.,  476,  and  the  valuable  note  of  Mr.  (since  Judge) 
Gray,  pp.  503,  528 ;  Quincy's  Munic.  Hist,  of  Boston,  ch.  I. ;  ante,  chapter  I. 
Towns  were  not  expressly  authorized  to  sue  and  be  sued  until  1694,  nor  for- 
mally incorporated  until  1785.     lb.  9  Gray,  511,  note  "G;"  2  Dane's  Ab. 
698;  "Willard  v.  Newburyport,  12  Pick.  227,  231;  Spaulding  v.  Lowell,  23 
Pick.  77,  78.     Post,  sec.  127,  note. 


Ch.  II.]     CORPORATIONS    DEFINED    AND     CLASSIFIED.  101 

1784  and  1821  rejected  well-considered  schemes  for  a  city 
government.  The  town  continued  to  be  governed  by  meet- 
ings of  the  electors  en  masse,  acting  through  boards  and 
officers,  until  the  place  had  forty  thousand  inhabitants,  of 
whom  seven  thousand  were  qualified  voters.  In  1822,  how 
ever,  the  legislature,  at  the  desire  of  a  majority  of  the  voters, 
granted  the  place  a  city  charter,  by  which  it  was  provided 
that  the  control  of  its  affairs  should  be  in  a  mayor  and  city 
council.  Aiter  this,  other  towns,  from  time  to  time,  made 
the  change  from  the  town  to  the  city  plan  ;  so  that,  as  be 
fore  observed,  we  have  in  the  New  England  states  both 
modes  of  local  administration.  The  town  system  is  the 
general  one ;  the  city,  or  representative  system,  is  the  ex- 
ceptional one,  and  is  confined  to  places  of  compact  popula- 
tion and  considerable  size.1 

1  No  city  was  incorporated  in  Massachusetts  until  after  the  amendment 
of  the  constitution  of  that  state  in  1820.  Per  Shaw,  C.  J.,  in  Warren  v. 
Charlestown,  2  Gray,  84.  After  referring  to  the  previous  attempts  in-'1784, 
1785,  1791,  1804,  and  1815,  to  change  the  town  government  of  Boston, 
Mr.  Josiah  Quincy,  in  his  Municipal  History  of  Boston,  p.  28,  continues: 
"In  1821,  the  impracticability  of  conducting  the  municipal  interests  of  the 
place,  under  the  form  of  town  government,  became  apparent  to  the  inhabi- 
tants. With  a  population  upwards  of  forty  thousand,  and  with  seven 
thousand  qualified  voters,  it  was  evidently  impossible  calmly  to  deliberate 
and  act.  When  a  town  meeting  was  held  on  any  exciting  subject,  in 
Faneuil  Hall,  those  only  who  obtained  places  near  the  moderator  could 
even  hear  the  discussion.  A  few  busy  or  interested  individuals  easily  ob- 
tained the  management  of  the  most  important  affairs,  in  an  assembly  in 
which  the  greater  number  could  have  neither  voice  nor  hearing.  When 
the  subject  was  not  generally  exciting,  town  meetings  were  usually  com- 
posed of  the  selectmen,  the  town  officers,  and  thirty  or  forty  inhabitants. 
Those  who  thus  came  were,  for  the  most  part,  drawn  to  it  from  some  offi- 
cial duty  or  private  interest,  which,  when  performed  or  obtained,  they  gen- 
erally troubled  themselves  but  little,  or  not  at  all,  about  the  other  business 
of  the  meeting.  In  assemblies  thus  composed,  by-laws  were  passed,  taxes, 
to  the  amount  of  one  hundred  or  one  hundred  and  fifty  thousand  dollars, 
voted,  on  statements  often  general  in  their  nature,  and  on  reports,  as  it  re- 
spects the  majority  of  voters  present,  taken  upon  trust,  and  which  no  one 
had  carefully  considered  except,  perhaps,  the  chairman.  In  the  constitu- 
tion of  the  town  government  there  had  resulted,  in  the  course  of  time,  from 
exigency  or  necessity,  a  complexity  little  adapted  to  produce  harmony  in 
action,  and  an  irresponsibility  irreconcilable  with  a  wise  and  efficient  con 
duct  of  its  affairs.  On  the  agents  of  the  town  there  was  no  direct  check  oi 
control ;  no  pledge  for  fidelity  but  their  own  honor  and  sense  of  character. 
The  prosperity  of  the  town  of  Boston,  under  such  a  form  of  gc  vernment; 


102  MUNICIPAL     CORPORATIONS.  [Oh.  II 

§  12.     The  character  of  towns  in  New  England,  and  in 
what    respects  they   differ  from    English  Municipal  Cor- 

the  few  defalcations  which  had  occurred;  the  frequent,  and  often,  for 
years,  uninterrupted,  re-election  of  the  same  members  to  the  officiating 
boards,  are  conclusive  evidence  of  the  prevailing  high  state  of  morais  and 
intelligence  among  the  inhabitants."  After  mentioning  the  different  boards 
among  which  the  executive  power  was  divided,  and  which  acted  independ- 
ently of  each  other,  and  which  were  invested  with  the  expending  power, 
and.  in  effect,  with  exercise  of  the  whole  power  of  taxation,  Mr!  Quincy 
proceeds:  "A  conviction  of  the  want  of  safety  and  of  responsibility  in  a 
machine  thus  complicated  and  loosely  combined,  became,  at  length,  so 
general  that  the  inherited  and  inveterate  antipathy  to  a  city  organization 
began  perceptibly  to  diminish.  About  -this  time,  also,  one  of  the  most 
common  and  formal  objections  to  a  city  organization  was  removed.  The 
constitution  of  Massachusetts,  which  was  passed  in  1780,  contained  no 
express  authority  to  establish  a  city  organization ;  and,  in  every  attempt  to 
change  that  of  the  town,  it  never  failed  to  be  zealously  contended  that  the 
legislature  of  the  commonwealth  possessed  no  such  power.  But  by  the 
amendments  to  the  constitution,  made  by  the  convention  of  1820,  and 
adopted  by  the  people,  this  power  was  expressly  recognized.  The  ques- 
tion, therefore,  now  stood  on  its  own  merits,  and  independent  of  constitu- 
tional objections.  The  debates,  also,  which  occurred  in  this  convention, 
had  a  tendency  to  Open  the  eyes  of  the  inhabitants  to  their  own  interests, 
and  to  allay  some  of  the  long-cherished  prejudices  against  a  city  organiza- 
tion." In  1821  the  people  voted  to  make  the  change,  and  measures  were 
immediately  taken  to  obtain  the  sanction  of  the  legislature.  The  legisla- 
ture, on  the  23d  day  of  February,  1822,  passed  "An  act  establishing  the 
city  of  Boston,"  commoniy  called  "the  city  charter."  The  following  is  a 
brief  outline  of  the  principal  features  of  this  charter,  taken  from  Quincy's 
Municipal  History  of  Boston,  p.  41 :  1.  The  title  of  the  corporation  to  be, 
"The  City  of  Boston."  2.  The  control  of  all  its  concerns  is  vested  in  a 
mayor,  a  board  of  aldermen,  consisting  of  eight,  and  common  council,  of 
forty-eight  inhabitants,  to  be  called,  when  conjoined,  "  The  City  Council." 

3.  The  city  to  be  divided  into  twelve  wards.  The  mayor  and  aldermen 
and  common  council  to  be  chosen  annually,  by  ballot,  by  and  from  inhab- 
itants; four  of  the  common  council  from  and  by  those  of  each  of  the  wards 

4.  The  city  clerk  to  be  chosen  by  the  city  council.  5.  The  mayor  to  receive 
a  salary.  His  duty,  to  be  vigilant  and  active  in  causing  the  laws  to  be 
executed;  to  inspect  the  conduct  of  all  subordinate  officers;  to  cause  care- 
lessness, negligence,  and  positive  violation  of  the  laws  to  be  prosecuted 
and  punished  ;  to  summon  meetings  of  either  or  both  boards;  to  communi 
cate  and  recommend  measures  for  the  improvement  of  the  finances,  the 
police,  health,  security,  cleanliness,  comfort,  and  ornament  of  the  city. 
6.  The  mayor  and  aldermen  are  vested  with  the  administration  of  the 
police  and  executive  power  of  the  corporation  generally,  and  with  specific 
enumerated  powers.  7.  All  other  powers  belonging  to  the  corporation  are 
vested  in  the  mayor,  aldermen,  and  common  council,  to  be  exercised  by 
concurrent  vote.      Post,  sec.  127,  note. 


Ch.  II.]     CORPORATIONS     DEFINED     A.ND     CLASSIFIED.  103 

porations,  existing  by  prescription  or  special  charter,  prior 
to  the  legislation  by  parliament  in  1S35,  before  mentioned,* 
and  the  care  to  be  observed  in  applying  the  English  cases 
relating  to  such  corporations  to  municipal  corporations  in 
this  country,  are  well  set  forth  by  the  learned  Chief  Justice 
Perley,  in  delivering  the  opinion  of  the  Supreme  Court  of 
New  Hampshire,  in  an  important  case  to  which  we  shall 
again  have  occasion  to  allude.1  He  says:  ''It  is  to  be 
observed  that  municipal  corporations  in  England  are  broadly 
distinguished  in  many  important  respects  from  towns  in 
this  and  the  other  New  England  states.  There  is  no  uni- 
formity in  the  powers  and  duties  of  English  municipal 
corporations.  They  were  not  created  and  established  under 
any  general  public  law,  but  the  powers  and  duties  of  each 
municipality  depended  upon  its  own  individual  grant  or 
prescription.  Their  corporate  franchises  were  held  of  the 
crown  by  the  tenure  of  performing  the  conditions  upon 
which  they  had  been  granted,  and  were  liable  to  forfeiture 
for  breach  of  the  conditions.  They  indeed  answered  certain 
public  purposes,  as  private  corporations  do  which  have 
public  duties  to  perform,  and  some  of  them  exercised  politi- 
cal rights.  But  they  are  not  like  towns  (with  us)  general, 
political  and  territorial  divisions  of  the  country,  with  uni- 
form powers  and  duties,  defined  and  varied,  from  time  to 
time,  by  general  legislation.  Towns  (in  New  England)  do 
not  hold  their  powers  ordinarily  under  any  grant  from  the 
government  to  the  individual  corporation ;  or  by  virtue  of 
any  contract  with  the  government,  or  upon  any  condition, 
express  or  implied.  They  give  no  assent  in  their  corporate 
capacity  to  the  laws  which  impose  their  public  duties  or  fix 
their  territorial  limits."  And  referring  to  the  case  then 
before  the  court,  he  added  :  "In  all  that  is  material  to  the 
,  present  inquiry,  municipal  corporations  in  England  bear 
much  less  resemblance  to  towns  in  this  country  than  to 
private  corporations  which  are  charged  with  the  perform- 
ance of  public  duties,  and  for  these  reasons  the  English 
authorities  on  the  subject  are  but  remotely  applicable  to 
the  present  case." 

1  Ante,  chap.  I. ;  post,  chap.  III. 

'  Eastmau  v.  Meredith,  36  N.  H.  284,  290,  1858. 


104  MUNICIPAL    CORPORATIONS.  [Ch.  H. 

§  12.  The  distinctive  character  of  the  New  England 
towns,  and  particularly  the  limited  nature  of  their  powers, 
will  be  further  seen  by  a  brief  glance  at  the  course  of 
judicial  decisions  with  respect  to  their  authority  to  make 
contracts  and  to  obtain  revenue.  Money  can  only  be  raised 
by  them  for  the  purposes  expressed  in  the  statute,  and  for 
expenses  incident  to  such  purposes.  The  power  of  the 
majority  is  wisely  limited  by  law  to  the  object  and  cases 
which  are  clearly  provided  for  and  defined  by  statute.1 

1  Stetson  v.  Kempton,  13  Mass.  272,  1816;  Parsons  v.  Goshen,  11  Pick. 
396,1831.  "This  limitation,"  says  Mr.  Justice  Wilde,  with  great  truth, 
in  the  case  last  cited,  "  upon  the  power  and  authority  of  towns  to  enter 
into  contracts  and  stipulations,  is  a  wise  and  salutary  provision  of  law, 
not  only  as  it  protects  the  rights  and  interests  of  the  minority  of  the  legal 
voters,  but  as  it  may  not  unfrequently  prove  beneficial  to  the  interests 
of  the  majority,  who  may  be  hurried  into  rash  and  unprofitable  speculations 
by  some  popular  or  delusive  excitement,  to  the  influence  of  which  even  wise 
and  considerate  men  are  sometimes  liable.  A  town  in  its  corporate  capacity 
will  not  be  bound,  even  by  the  express  vote  of  the  majority,  to  the  per- 
formance of  contracts  or  other  legal  duties,  not  coming  within  the  scope  of 
the  objects  and  purposes  for  which  they  are  incorporated."  Anthony  v. 
Adams,  1  Met.  284,  286,  1840,  per  Shaw,  C.  J. ;  quoted  and  followed  in 
Vincent  v.  Nantucket,  12  Cush.  105,  1853.  See  also  Norton  v.  Mansfield, 
16  Mass.  48 ;  Dill  v.  Wareham,  7  Met.  438,  1844  (contract  by  the  town, 
undertaking  to  transfer  the  right  of  taking  oysters  within  its  limits). 

Whether  towns  in  Massachusetts  are  authorized  under  the  statute  to 
make  any  contract  for  the  payment  of  money,  which  they  are  not  authorized 
to  raise  money  to  discharge  by  a  tax  on  the  inhabitants,  does  not  seem  to 
be  settled  by  express  adjudication.  Bancroft  v.  Lynnfield,  18  Pick.  566, 
1836,  per  Shaw,  C.  J. ;  Tash  v.  Adams,  10  Cush.  552,  1852. 

"The  inhabitants  of  every  town  in  this  state" — Maine — says  Shepley, 
C.  J.,  in  Hooper  v.  Emery,  14  Maine  (2  Shep.)  375,  1837;  "are  declared  to 
be  a  body  politic  and  corporate  by  the  statute:  but  these  corporations 
derive  none  of  their  powers  from,  nor  are  any  duties  imposed  upon  them 
by,  the  common  law.  -They  have  been  denominated  quasi  corporations,  and 
their  whole  capacities,  powers  and  duties  are  derived  from  legislative  enact- 
ments." See  also  Pitt  son  v.  Clark,  15  Maine,  460,  463;  Augusta  v.  Lead- 
better,  16  Maine,  45,  1839;  Estes  v.  School  Dist.,  33  Maine,  170,  1871 ;  Mitch- 
ell v.  Rockland,  45  Maine,  496,  504,  1858 ;  Salem  Mill  Dam  v.  Ropes,  6  Pick. 
23,  32;  School  Dist.  etc.  v.  Wood,  13  Mass.  193,  1816,  per  Purler,  C.  J.; 
Mower  v.  Leicester,  9  Mass.  247,  250,  1812. 

Where  the  legislature  has  prescribed  the  purposes  for  which  money  may 
be  raised  by  taxation,  it  cannot  be  raised  for  other  and  distinct  purposes. 
Nor  when  it  is  raised  and  collected  for  authorized  and  proper  purposes  can 
it  be  appropriated  to,  or  expended  upon  other  and  different,  objects.  Thia 
wonld  be  to  break  down  and  defeat  the  limitation.      Hence  towns  cannot 


Ch.  II. J     CORPORATIONS     DEFINED     AND     CLASSIFIED.  105 

Tims  a  town,  under  a  statute  which  restricts  them  to 
raising  money  to  provide  for  "the  poor,  for  schools,  for  the 
support  of  public  worship,  and  other  necessary  charges," 
cannot  raise  money,  even  in  the  time  of  war,  and  when  the 
town  is  in  immediate  danger  from  the  enemy;  for  the  pay- 
ment of  additional  wages  to  the  drafted  and  enlisted  militia, 
and  for  other  purposes  of  defence.  This  is  not  a  corporate 
duty,  but  the  duty  of  the  general  government,'  Nor  can  it 
appropriate  money,  contract  for,  or  levy  a  tax  to  aid  in  the 
construction  of  a  road,  which,  by  law.  is  to  be  made  at  the 
expense  of  the  county^  and  not  the  town.8  A  town  may,  it 
is  said,  raise  money  to  meet  ordinary  expenditures,  such  as 
the  payment  of  officers,  the  support  and  defence  of  actions, 

give  away  or  distribute, ^per  capita  or  otherwise,  mouey  collected  by  taxation. 
Hooper  v.  Emery,  14  Maine  (2  Shep.)  375,  explaining  Ford  v.  Clough,  8 
Greenl.  334;  Davis  v.  Bath,  17  Maine,  141,  1840;  Pease  v.  Cornish,  19  Maine 
(1  Appl.)  191, 1841 ;  Stetsons.  Kempton,  13  Mass.  272:  Dillingham  v.  Snow, 

5  Mass.  547;  Spaulding  v.  Lowell,  23  Pick.  71,1830;  Woodbury  v.  Hamilton, 

6  Pick.  101 ;  Cooley  v.  Granville,  10  Cush.  56. 

The  Vermont  statute  respecting  the  powers  of  towns  is  nearly  a  tran- 
script of  that  of  Massachusetts.  The  Supreme  Court  of  Vermont  approves 
of  the  exposition  of  the  statute  given  by  the  Supreme  Court  of  Massachusetts 
in  Willard  v.  Newburyport,  12  Pick.  230;  Alien  v.  Taunton,  19  Pick.  485; 
Torry  v.  Milbury,  21  Pick.  64 ;  Spaulding  v.  Lowell,  23  Pick.  71 ;  Hardy  v. 
"Waltham,  3  Met.  163,  per  Isham,  J.,  in  Van  Sicklen  v.  Burlington,  27 
Verm.  (1  Wms.)  70.  For  discussion  of  powers  and  duties  of  selectmen,  and 
digest  of  previous  decisions  in  Xew  Hampshire,  see  Carleton  v.  Bath,  2  Fost. 
(N.  H.)  559.  Have  no  general  authority  to  bind  the  town  by  contract, 
Andover  v.  Grafton,  7  N.  H.  300.  But  are  confined  to  such  acts  as  are 
necessary  to  the  discharge  of  their  duties.  Sanborn  v.  Deerfield,  2  N.  H. 
253.  Cannot,  ex-officio,  adjust  controversies  or  suits,  or  release  a  cause  of 
action.  Carlton  v.  Bath,  2  Foster,  559.  May  indemnify  town  officers  in 
proper  cases.  12  N.  H.  2T8.  But  there  is  no  promise  implied  in  law  against 
a  town  to  indemnify  selectmen  in  any  case,  for  damages  which  they  have 
been  compelled  to  pay,  arising  out  of  the  discharge  of  official  duty.  35 
N.  H.  189.  Are  supposed  to  be  liable  to  the  corporation  for  gross 
neglect  of  official  duty.    Sanborn  v.  Deerfield,  2  N.  H.  253,  by  Woodbury,  J. 

1  Stetson  v.  Kempton,  13  Mass.  272,  1816,  where  the  phrase,  necessary 
toxen  charges,  is  construed  by  Parker,  C.  J. ;  and  see  comment  of  Shaw,  C.  J., 
12  Pick.  227,  230,  and  23  Pick.  74;  and  of  Dewey,  J.,  in  Allen  v.  Taunton, 
19  Pick.  485,  487;  18  lb.  566,  10  Cush.  57  ;  of  Clifford,  J.,  in  Burrill  v.  Bos- 
ton, 2  Clifford  Cir.  C.  590,  1867. 

8  Parsons  v.  Goshen,  11  Pick  396,  1831 ;  Anthony  v.  Adams,  1  Met.  284, 
1840. 


XOG  MUNICIPAL     CORPORATIONS.  [Ch.  II. 

the  expenses  incident  to  discharging  duties  imposed  by  law, 
looking  to  the  safety  and  convenience  of  the  citizens.  Thus 
it  can  erect  a  town  or  city  hall,  or  market  house,  but  not  a 
theatre,  a  circus,  or  any  place  of  mere  amusement,  nor  even 
a  statue  or  monument,  unless  in  populous  and  wealthy 
towns,  as  suitable  ornaments  to  public  buildings  or  squares.1 
So  towns  may  provide  for  the  support  of  a  public  clock,  hay 
scales,  burying  ground,  wells,  reservoirs,  and  many  other 
like  objects  which  relate  to  the  accommodation  and  conve- 
nience of  the  inhabitants,  and  which  have  been  placed  under 
the  municipal  jurisdiction  of  towns  by  statute  or  by  usage." 

§  14.  Although  not  styled  such,  each  one  of  the  United 
States,  in  its  organized  political  capacity,  is  in  effect  a  pub- 
lic corporation.  Corporations,  however,  as  the  term  is  com- 
monly used,  does  not  include  states,  but  only  derivative 
creations,  owing  their,  existence  and  powers  to  the  state  act- 
ing through  its  legislative  department.  Like  corporations, 
however,  a  state,  as  it  can  make  contracts  and  suffer  wrongs, 
so  it  may,  for  this  reason,  and  without  express  provision, 
maintain,  in  its  corporate  name,  actions  to  enforce  its  rights 
and  redress  its  injuries.3  But  a  state  is  not  liable  to  be  sued 
without  its  consent  ;4  although  it  is  not  unusual  for  states,  by 
special  enactment,  to  authorize  suits  to  be  brought  against 
them,  but,  as  the  permission  is  voluntary,  they  may  pre- 
scribe the  terms,  and,  unless  it  impairs  the  obligation  of  con- 
tracts, may  withdraw  the  consent  at  pleasure'.6    A  devise  to 

1  Stetson  v.  Kempton,  13  Mass.  272,  1816,  per  ParJcer,  C  J. ;  Allen  v. 
Taunton,  19  Pick.  485,  487,  opinion  by  Dewey,  J.,  as  to  power  of  towns  in 
Massachusetts;  Spalding  v.  Lowell,  23  Pick.  71,  opinion  of  Shaw,  C.  J.,  on 
same  subject. 

s  Willard  v.  Newburyport,  12  Pick.  227,  230,  1831. 

3  Delafield  v.  Illinois,  2  Hill  (K  T.),  159,  162;  26  Wend.  192,  1841,  af- 
irming  S.  C,  8  Paige,  531;  Indiana  v.  Woram,  6  Hill  (N.  T.)  33,  1843. 
These  cases  hold  that  states  may  sue  as  plaintiff  in  the  state  courts ;  State 
©.  Delesdenier,  7  Texas,  76 ;  People  v.  Assessors,  1  Hill,  620.  The  governor 
of  a  state,  as  the  head  of  the  executive  department,  is  a  corporation  sole, 
and  bonds  made  payable  to  him  may  be  enforced  for  the  benefit  of  those 
interested.  Governor  v.  Allen,  8  Hump.  (Tenn.)  176,  1847;  Polk,  Gov- 
ernor, v.  Plummer,  2  I~b.  500. 

4  Briscoe  v.  Bank,  11  Pet.  257,  321. 

•  Beers  v.  Arkansas,   20  How.  527,  1857;  Dodd  v.  Miller,   14  Ind.  433; 


Ch.  II.]      CORPORATIONS     DEFINED     AND     CLASSIFIED.         107 

a  state  for  any  object  which  it  may  properly  aid  or  provide 
for,  is  valid.1  Extended  consideration  of  the  powers  of  the 
states,  and  of  their  relation  to  the  United  States  and  to  each 
other,  is  not  within  the  scope  of  the  present  work,  which  is 
limited  strictly  to  municipal  corporations. 

Auditor  v.  Da  vies,  2  Pike  (Ark.)  494 ;  Ellis  «.  State,  4  Ind.  1 ;  State  v. 
Trustees,  5  Ind.  77.  The  supreme  court  of  the  United  States  has  original 
jurisdiction  in  cases  in  which  a  state  shall  be  a  party,  as  also  in  suit  be- 
tween states.  Kentucky  v.  Dennison,  24  How.  66 ;  Wisconsin  v.  Duluth,  2 
Di'lon  C.  C.  1872.    The  United  States  Circuit  Court  has  not.     lb. 

1  McDonough  Will  Case,  15  How.  367,  382,  1853.     Post,  sec.  439. 


108  MUNICIPAL     CORPORATIONS.  [Ch.  IIL 


CHAPTER  III. 

Creation,  and  Several  Kinds  of  Municipal  Corpora- 
tions. 

In  England, — Difference  between  Regal  and  Parliament- 

tary  Corporations. — Municipal  Corporations 

Act  of  1835. 

§  15.  In  England,  corporations  can  only  be  created  in 
one  of  two  ways:  1,  by  the  king's  charter;  2,  by  act  of 
parliament.  They  exist  there,  however — 1,  by  the  common 
law  ;  2,  by  prescription  ;  3,  by  royal  charter  ;  4,  by  author- 
ity of  parliament.  Corporations  at  common  law  are  those 
which  derive  their  existence  and  powers  from  immemorial 
usage,  although  they  may  have  had  their  origin  in  an  act 
of  parliament  or  royal  grant,  no  longer  discoveiable.  Those 
by  prescription  presuppose  a  grant  by  charter  or  act  of 
parliament,  which  has  been  lost.  Into  corporations  created 
by  regal  or  legislative  grant  may  be  resolved  what  have 
been  styled  corporations  by  implication,  which  is,  where  a 
body,  lawfully  constituted,  cannot  carry  into  effect  its  pur- 
poses without  attributing  to  it  a  corporate  character.  The 
franchise  of  being  a  corporation,  and  the  right  to  exercise 
corporate  powers  and  to  enjoy  corporate  privileges,  can  be 
claimed  in  no  other  way  than  as  above  stated.  A  legal 
sanction  to  the  corporate  character  is,  therefore,  absolutely 
necessary,  and  is  always  implied.1  The  distinction  between 
corporations  deriving  their  existence  from  the  king's  charter 
and  those  which  derive  their  existence  from  parliament  is 
important.  A  royal  charter  is  a  written  instrument,  in  the 
form  of  letters  patent,  under  the  great  seal,  addressed  to  all 
the  subjects  of  the  realm,  containing  a  grant,  by  the  crown, 
to  the  persons  named,  of  the  franchises,  powers,  and  priv- 

1  Willc.  21;  Glover,  23;  Grant,  6,  7;  1  Kyd,  39;  Angell  &  Am.  see. 
69;  Bro.  Corp.  65;  Eastman  v.  Meredith,  36  N.  H.  284,  290,  1858,  pei 
Perlcy,  C.  J. ;  St.  Louis  t>.  Allen,  13  Mo.  400;  Same  v.  Russell,  9  lb.  503. 


Ch.  in.]       CREATION     OF     PUBLIC     CORPORATIONS.  109 

ileges  therein  mentioned.  A  charter  of  incorporation, 
therefore,  is  the  written  instrument  by  which  the  king 
creates  the  corporate  body,  names  it,  defines  its  objects,  and 
confers  its  powers.  Unless  restricted  in  the  charter,  all  of 
the  common  law  incidents  of  a  corporation  attach  to  it,  but 
no  corporation  can  pursue  objects  not  warranted  by  its 
charter.  The  charter  is  the  organic  act  which  gives  to  the 
corporation  both  its  existence  and  its  peculiar  character.1 

The  king's  charter  may  confer  upon  the  corporation  it 
institutes  all  the  usual  and  ordinary  powers  of  a  corporate 
body,  but  it  cannot  invest  such  a  body  with  extraordinary 
powers,  such  as  proceeding  in  a  manner  different  from  the 
common  law,  or  punishing  by  forfeiture  or  imprisonment, 
or  conferring  an  exclusive  right  of  trading.  When  the  king 
grants  clauses  which  are  illegal,  they  are  void,  and  if  clearly 
illegal  and  not  confirmed  by  parliament,  no  length  of  time 
or  usage  will  make  such  clauses  valid.  But  parliament,  in 
the  fullness  of  its  power,  may  grant  to  corporations  which 
it  erects  such  powers,  ordinary  and  extraordinary,  as  it 
deems  proper  ;  and  it  may  do,  as  it  has  often  done,  confirm 
clauses  in  royal  charters  which  were  void,  because  beyond 
the  king's  power  to  grant. 

The  king  cannot  incorporate  a  body  of  men  without 
their  assent.  Until  his  charter  has  been  accepted,  it  is  in- 
operative." When  once  accepted,  the  acceptance  is  irrevo- 
cable. The  acceptance  must  be  by  those  to  whom  it  is  ad- 
dressed ;  and  it  is  held  that  a  valid  acceptance  may  be  made 
by  a  majority  of  the  grantees.  The  charter  must  be  accepted 
in  toto,  or  not  at  all,  for  there  can  be  no  partial  acceptance 
without  the  assent  of  the  crown,  which  must  be  shown  by 
matter  of  record.  If  the  corporation  be  a  new  one,  accept- 
ance of  part  of  the  charter  is  taken  as  acceptance  of  all. 
Acceptance  may  be  shown  by  user — by  acting  under  it,  as 
well  as  by  the  formal  action  of  the  corporate  body.  After 
acceptance,  the  crown  cannot  resume  the  grant,  nor  dissolve 
or  destroy  the  corporation,  without  the  consent  of  the 
grantees  or  their  successors.  The  crown,  at  common  law, 
can  create  a  corporation  for  municipal  government  in  any 

1  Outline  of  municipal  charter  of  the  middle  ages.     Ante,  sec.  6. 
*  Acceptance  of  charter.     Post,  sees.  23,  30,  38,  719,  n. 


110  MUNICIPAL     CORPORATIONS.  [Ch.  IIL 


place  where  there  is  not,  at  the  time,  an  existing  corporation 
of  the  same  kind,  bnt  there  cannot  be,  concurrently,  two 
corporations,  for  the  same  place,  having  the  same  or  similar 
powers  or  jurisdiction.  But  such  limitations  upon  the 
power  of  the  crown  do  not  apply  with  respect  to  municipal 
corporations  created  by  parliament.  Its  power  is,  legally 
speaking,  illimitable.  It  may  create,  and  abolish,  and 
change,  at  its  pleasure,  with  or  without  the  assent  of  the 
people  or  corporation  to  be  thereby  affected.  It  may 
change  royal  charters,  but  parliamentary  corporations  can- 
not be  affected,  without  the  consent  of  parliament,  by  char- 
ters granted  by  the  crown.  Except  as  to  the  extent  of 
powers  which  may  be  conferred,  a  parliamentary  corpora- 
tion is,  at  common  law,  similar  to  that  which  is  created  by 
the  crown.1 

§  16.  Prior  to  1835,  many  of  the  towns,  boroughs  and 
cities  of  England  were  incorporated  in  one  of  the  ways  men- 
tioned ;  that  is  to  say,  there  were  in  them  bodies  corporate, 
established  for  the  local  government  thereof.  There  was  no 
uniformity  in  the  constitution  or  powers  of  these  corporate 
bodies.  The  corporation  proper  was  not  the  town  or  place, 
but  a  corporate  body  constituted  within  it,  with  powers  or 
jurisdiction,  more  or  less  extensive,  to  govern  the  inhab- 
itants. These  bodies  were  established  at  different  times, 
and  with  different  motives.  The  first  distinct  recognition  of 
a  municipal  corporation  was  in  the  18th  of  Henry  VI. 
(A.  D.  1439),  with  reference  to  Kingston-upon-Hull,  which 
had  an  express  charter  of  incorporation  granted  to  it,  for 
the  first  time,  in  that  year.  Charters  had  previously  been 
granted  to  it  by  different  sovereigns,  at  various  times,  giving 
it  various  privileges,  but  they  did  not  incorporate  the  place, 
nor  was  it  incorporated  until  the  charter  of  18th  Henry  VI., 
which  is  the  first  that  uses  terms  of  incorporation.2  Subse- 
quently such  corporations  were  erected  from  time  to  time, 
each   with    its    peculiar    constitution,    depending    on    the 

:  Authorities  last  cited.  Respecting  tne  authority  of  the  crown  to 
grant  charters  to  incorporate  towns,  since  the  General  Municipal  Corpora- 
tions Act  of  1835,  see  Rutter  v.  Chapman,  8  M.  &  W.  1;  Reg.  v.  Boucher,. 
3  Q.  B.  654  ;  S.  C,  2  G.  &  D.  737. 

8  Glover  on  Munic.  Corp.  16. 


Ch.  UL]       CREATION     OF     PUBLIC     CORPORATIONS.  \\\ 

provisions    of    the    charter    or    prescriptive    usage.     The 
constitution    of    the     corporations    was    so    various,    and 
is    so     different    from     the    American     model,     that    it 
requires    care  to    obtain    an    accurate    idea    of    it.     For 
illustration,  we  will  take  a  simple  form,  viz.  :  where  by- 
char  ter  or  prescription  the    corporation   consists  of    the 
mayor,  aldermen,  and  commonalty  of  a  town.     Here  there 
are  three  ranks,  classes,  or  parts :  1,  the  mayor  or  head  offi- 
cer ;  2,  the  aldermen,  the  number  of  whom  is  definite,  being 
fixed  by  the  charter,  or  by  prescriptive  usage  ;  3,  the  com- 
monalty, that  is,  tbe  common  freemen,  whose   number  is 
indefinite,  and  whose  rights,  in   the  course  of  time,  were 
largely  usurped  or  destroyed.     These  three  classes  Were 
denominated  the  integral  parts  of  the  corporation,  and  no 
corporation  was  complete  (except  it  be  otherwise  provided 
by  the  charter)  unless  the  mayor,  or  head  officer,  a  majority 
of  the  definite  class  (that  is,  a  majority  of  the  aldermen), 
and  some  members  of  the  indefinite  class,  or  commonalty, 
be  in  existence.     Hence,  during  a  vacancy  in  the  office  of 
mayor,  no  valid  corporate  act  can  be  done  except  to  elect 
another,    since   without  a  mayor    the    corporate    body  is 
incomplete.    .Hence,  also,  at  every  corporate  meeting  it  was 
essential,  at  common  law,  that  there  should  be  present  the 
mayor,  or  head   officer,  whose  duty  it  was  to  preside,  a 
majority  of  each  definite  integral  class,  and  some  members 
of  each  indefinite  class,  if  there  be  more  than  one  such  class. 
In  the  course  of  time  great  abuses  had  crept  into  these 
bodies,  which  parliament  had  frequently  been  obliged  to 
redress.      Complaints  of  grievances  were  universal,    and 
misrule,  confusion,  and  internal  disputes  so  general  that  the 
municipal  system  of  government  fell  into  great  and  deserved 
disrepute.     As  a  measure   of  reform,  the  Municipal  Cor- 
porations Act   of  5  and  6  Will.  IV.  chap.   LXXVI.  was 
devised  and  enacted.1     "I  cordially  concur,"  said  the  king, 

1  The  reformed  house  of  commons  presented  an  address  to  William  IV. 
requesting  the  appointment  of  a  commission  to  inquire  into  the  state  of  the 
municipal  corporations  in  England  and  Wales.  The  commission  which 
-was  appointed  made  a  thorough  examination  of  the  condition  of  the  vari- 
ous boroughs,  and  their  report  disclosed  abuses  and  defects  which  it  seems 
marvelous  that  any  spirited  people  so  long  endured.  See  chapter  I.  antey 
sec.  8. 


112  MUNICIPAL     CORPORATIONS.  [Ch.  HI. 

"in  this  important  measure,  which  is  calculated  to  allay 
discontent,  to  promote  peace  and  union,  and  to  procure  for 
those  communities  the  advantages  of  responsible  govern- 

From  various  sources  of  information  the  commission  ascertained  the  ex- 
istence of  two  hundred  and  forty-six  corporations,  in  England  and  Wales, 
exercising  municipal  functions.  The  population  of  these  corporate  places 
exceeded  two  millions  of  people.  Some  of  these  corporations  claimed  to 
act  under  prescriptive  custom,  but  most  of  them  under  several  charters, 
forming  a  continued  series  from  a  very  early  date,  but  generally  under 
charters  granted  from  the  reign  of  Edward  I.  down  to  the  reign  of  George 
rV.  inclusive.  The  number  of  corporators  stated  to  be  definite,  in  fifty 
boroughs,  varied  in  most  cases  from  under  ten  to  thirty,  and  those  indefi- 
nite, in  one  hundred  and  sixty-two  boroughs,  varied  from  twelve  to  five 
thousand,  but  usually  averaged  from  fifty  to  two  hundred  corporators.  The 
titles  to  freedom,  or  citizenship,  generally  comprehended  those  arising  from 
birth,  servitude,  marriage,  purchase,  gift,  or  election.  The  governing 
bodies  were  formed  by  the  close  and  corrupt  system  of  self-election,  in  a 
great  majority  of  the  municipalities.  The  corporate  officers,  such  as  the 
mayor,  or  other  head  of  the  corporation,  the  recorder — frequently  unpro- 
fessional— aud  the  town  clerk,  were  appointed  by  the  self-elected  govern- 
ing body  from  its  own  immaculate  conclave.  Most  of  the  municipalities 
possessed  exclusive  criminal  jurisdiction,  extending  to  the  trial  of  felonies 
and  all  other  offences,  whereas  many  appear  never  to  have  had  any  crim- 
inal jurisdiction.  Several  boroughs  had  civil  jurisdiction  extending  to  the 
decision  of  all  actions;  some  extending  to  the  decision  of  personal  and 
mixed  actions;  others  to  the  decision  of  personal  actions;  while  in  a  great 
number,  no  civil  jurisdiction  appeared  ever  to  have  existed.  The  property, 
in  some  few  boroughs,  was  trivial,  but  the  revenue  generally  averaged  from 
500Z  to  1000Z  in  each,  while  in  some  the  property  exceeded  50,000Z  per  an- 
num. In  a  few  towns  corporate,  the  accounts  were  printed  for  distribution 
and  audited  publicly ;  but  in  most  cases,  the  accounts  were  neither  duly 
kept,  nor  audited,  nor  published,  besides  being  inaccurate  and  in  a  gener- 
ally unsatisfactory  state.  The  annual  income  of  these  municipal  corpora- 
tions amounted  to  about  366,0007,  and  the  expenditure  to  377,000?,  while 
the  debt  in  one  hundred  and  thirty-three  exceeded  the  sum  of  two  mil- 
lions sterling.  Throughout  the  course  of  the  investigation  of  the  comniis 
eioners  there  were  perceptible  the  same  complaints — of  magistrates  ill 
qualified,  by  education  and  habits,  for  their  situations,  generally  partial, 
and  sometimes  corrupt ;  of  courts,  which  might  be  made  the  instruments  of 
much  local  advantage,  falling  into  disuse  through  defects  of  their  original 
constitution  and  their  recent  maladministration;  of  juries  improperly 
selected  by  reason  of  notorious  party  bias;  of  revenue  misapplied ;  of  debt 
contracted  and  of  property  alienated;  of  the  absence  of  all  accounts  and 
the  denial  of  all  accountability  by  certain  corporations;  of  the  insufficiency 
of  the  police,  the  neglect  of  paving  and  lighting,  and  the  want  of  those 
municipal  accommodations  for  which  the  public  property  committed  in 
trust  to  the  corporation  would,  if  duly  administered,  be  amply  sufficient  to 


Ch.  IK.]        CREATION     OF     PUBLIC     CORPORATIONS.  HR 

ment.''  This  act  organizes  all  of  the  municipal  corpor- 
ations of  England  and  Wales  upon  a  uniform  model.  It 
does  not  altogether  destroy  their  previously  existing  lawful 

provide.  Having  given  a  general  view  of  the  ordinary  constitution  of  the 
various  municipalities,  the  commissioners  next  proceeded  to  specify  some 
of  their  defects.  The  most  common  and  most  striking  clef ect  in  the  constitu- 
tion of  the  municipal  corporations  was,  that  the  corporate  bodies  existed  inde- 
pendently of  the  communities  among  which  they  were  found.  The  corporators 
looked  upon  themselves,  and  were  considered  by  the  inhabitants,  as  sepa- 
rate and  exclusive  bodies ;  they  had  powers  and  privileges  within  the 
towns  and  cities  from  which  they  were  named,  but,  in  most  places,  all 
identity  of  interest  between  the  corporation  and  the  inhabitants  disap- 
peared. That  was  the  case  even  where  the  corporation  included  a  large 
body  of  inhabitant  freemen.  It  appeared  in  a  more  striking  degree  as  the 
powers  of  the  corporation  had  been  restricted  to  smaller  numbers  of  the 
resident  population,  and  still  more  glaringly  when  the  local  privileges  had 
been  conferred  on  non-resident  freemen,  to  the  exclusion  of  the  inhabitants 
to  whom  they  rightfully  ought  to  belong.  The  privilege  of  electing  members 
of  parliament  being  that  which,  before  the  passing  of  the  reform  act,  con- 
ferred upon  the  self-elected  governing  bodies  of  close  corporate  towns  their 
principal  importance,  and  the  rewards  for  political  services  which  the 
patron  was  accustomed  to  distribute  among  them,  caused  this  function  to 
be  considered,  in  many  places,  as  the  sole  object  of  their  institution.  The 
power  so  monopolized  and  employed  in  a  mode  unsuitable  to  the  altered 
circumstances  of  the  times,  led  to  various  abuses  of  the  system.  The  cus- 
tom of  keeping  the  number  of  corporators  as  low  as  possible,  may  be 
referred  to  the  wish  for  preserving  the  parliamentary  franchise,  rather 
than  to  the  desire  of  monopolizing  the  municipal  authority,  which  had 
been  coveted  only  as  a  means  of  securing  the  other  and  more  highly  prized 
privilege.  A  great  number  of  corporations  were  preserved  solely  as  political 
engines,  and  the  towns  to  which  they  belonged  derived  no  benefit,  but  often 
much  injury,  from  their  existence.  To  maintain  the  political  ascendency  of 
a  party,  or  the  political  influence  of  a  family,  was  the  one  end  and  object 
for  which  the  powers  entrusted  to  a  numerous  class  of  these  bodies  have 
been  exercised.  This  object  was  systematically  pursued  in  the  admission 
of  freemen,  resident  or  non-resident;  in  their  election  of  municipal  func- 
tionaries for  the  council  or  the  magistracy;  in  the  appointment  of  subordi- 
nate officers  and  the  local  police ;  in  the  administration  of  charities  entrusted 
to  the  municipal  authorities;  in  the  expenditure  of  the  corporate  revenue 
and  in  the  management  of  the  corporate  property.  The  most  flagrant 
abuses  arose  from  this  perversion  of  municipal  privileges  to  political  objects. 
Thus  the  inhabitants  had  to  complain,  not  only  that  the  election  of  their 
magistrates  and  other  municipal  functionaries  was  made  by  an  inferior 
class  of  themselves,  or  by  persons  unconnected  with  the  town,  but  also  of 
the  disgraceful  practices  by  which  the  magisterial  office  was  frequently 
obtained;  while  those  who,  by  character,  residence,  and  property,  being  best 
qualified  to  direct  and  control  its  municipal  affairs,  were  excluded  from 
8 


114  MUNICIPAL     CORPORATIONS.  [Ch.  IIL 

corporate  powers,  but  it  does  sweep  away  all  laws,  statutes, 
charters  and  usages  inconsistent  with  or  contrary  to  its 
provisions.  It  defines  who  shall  be  burgesses  or  citizens; 
making  the  right  essentially  depend  updn  occupancy  of 
houses  or  shops  within  the  borough,  and  the  payment  of 
taxes  for  the  relief  of  the  poor.  These  burgesses  or  citizens 
elect,  from  time  to  time,  a  fixed  number  of  proper  persons 
to  be  councillors,  and  the  council  (composed  of  the  mayor, 
aldermen,,  and  councillors)  elect,  from  qualified  persons, 
the  aldermen,  and  also  the  mayor  and  the  ministerial  and 
inferior  corporate  officers.     "  The  counciV  is  the  governing 

any  share  in  the  elections  or  management.  The  exclusive  and  party  spirit 
belonging  to  the  whole  corporate  body,  appeared  in  a  still  more  marked 
manner  in  the  councils  by  which,  in  most  cases,  it  was  governed.  These 
councils  were  usually  self-elected,  and  held  their  offices  for  life.  They  were 
commonly  of  one  political  party,  and  their  proceedings  were. mainly 
directed  to  secure  and  perpetuate  the  ascendancy  of  the  party  to  which 
they  belonged.  Individuals  of  adverse  political  opinions  were,  in  most 
cases,  systematically  excluded  from  the  governing  body.  These  councils, 
which  embodied  the  opinions  of  a  single  party,  were  entrusted  with  the 
nomination  of  magistrates,  of  the  civil  and  criminal  judges,  often  of  the 
superintendents  of  police,  and  were,  or  ought  to  have  been,  the  leaders  in 
every  measure  that  concerned  the  inteiests  and  prosperity  of  the  town.  So 
far  from  being  the  representatives  either  of  the  population  or  of  the  prop- 
erty of  the  town,  they  did  not  represent  even  the  privileged  class  of  free- 
men ;  and  being  elected  for  life,  their  proceedings  were  unchecked  by  any 
feeling  of  responsibility.  In  conclusion,  the  commissioners  reported  that 
there  prevailed  amongst  the  inhabitants  of  a  great  majority  of  the 
incorporated  towns  a  general  and  a  just  dissatisfaction  with  their  municipal 
councils,  whose  powers  were  subject  to  no  proper  control,  whose  acts  and 
whose  proceedings,  being  secret,  were  unchecked  by  the  influence  of  public 
opinion;  a  distrust  of  the  municipal  magistracy,  tainting  with  suspicion  the 
local  administration  of  justice,  and  often  accompanied  with  contempt  of 
the  persons  by  whom  the  law  was  administered  ;  a  discontent  under  the 
burdens  of  local  taxation,  while  revenues  that  ought  to  be  applied  for  the 
public  advantage  were  diverted  from  their  legitimate  use,  and  sometimes 
wastefully  bestowed  for  the  benefit  of  individuals,  sometimes  squandered 
for  purposes  injurious  to  the  character  and  morals  of  the  people.  The 
commissioners  therefore  felt  it  their  duty  to  represent  to  his  majesty,  that 
the  municipal  corporations  of  England  and  Wales  neither  possess  nor 
deserve  the  confidence  or  respect  of  his  majesty's  subjects,  and  that  a 
thorough  reform  must  be  effected  before  they  can  become,  what  they  ought 
to  be,  useful  and  efficient  instruments  of  local  government.  Glover's  His- 
torical Summary  of  the  Corporate  System  of  Great  Britain  and  Ireland,  pp. 
38  to  45.  The  result  was  the  Municipal  Corporations  Act  of  5  and  6  WilL 
IV.  chap.  LXXVI. 


Ch.  III.]        CREATION     OF     PUBLIC     CORPORATIONS.  115 

body  of  the  corporation,  and  its  most  important  powers  are 
defined  by  various  acts  of  partiament.  It  will  thus  be  per- 
ceived that  the  original  power  is  in  the  burgesses  or  citizens, 
and  that  the  act  adopts  the  representative  system,  and 
proceeds  upon  the  idea  that  a  substantial  interest  in  the 
incorporated  place,  which  is  made  necessary  in  order  to  be 
a  burgess  or  citizen,  will  induce  care  in  the  selection  of 
councillors,  and  that  frequent  elections  will  prove  the  most 
effectual  check  on  those  entrusted  with  the  administration 
of  the  municipal  authority,  which  is  carefully  limited  and 
defined. 

The  act  of  1835,  with  some  amendments,  constitutes  the 
body  of  the  existing  English  municipal  corporations  system, 
and  its  leading  provisions  are  so  important  to  be  understood 
in  the  study  and  application  of  the  English  cases  to  ques- 
tions arising  in  this  country,  and  contain  so  much  of  inter- 
est to  the  lawyer,  the  legislator,  and  the  municipal  inquirer, 
that  they  are  given  or>referred  to  in  the  note.1 

1  Municipal  Corporations  Act  of  5  and  6  Will.  IV.  cap.  76,  passed  Septem- 
ber 9,  1835.— Name,  &c.  This  act  commences  by  reciting,  that  "  Whereas, 
divers  bodies  corporate  at  sundry  times  have  been  constituted  within  the 
cities,  towns,  and  boroughs  of  England  and  Wales,  to  the  intent  that  the 
same  might  forever  be  and  remain  well  and  quietly  governed ;  and  it  is 
expedient  that  the  charters  by  which  said  bodies  corporate  and  constituted, 
should  be  altered  in  the  manner  hereinafter  mentioned;  be  it  therefore 
enacted,  that  so  much  of  all  laws,  statutes,  and  usages,  and  so  much  of  all 
royal  and  other  charters,  now  in  force,  relating  to  the  several  boroughs 
named  in  schedules  (A  and  B)  annexed,  as  are  inconsistent  with,  or  con- 
trary to,  this  act,  shall  be,  and  the  same  are  hereby,  repealed  and  annulled'''' 
(sec.  1),  with  the  reservation  of  certain  rights,  beneficial  exemptions,  and 
franchises  to  the  freemen  or  citizens  (sees.  2-5).  These  schedules  contain 
an  alphabetical  list  of  all  the  incorporated  boroughs,  with  the  number  of 
wards,  number  of  aldermen,  and  number  of  councillors,  and  style  of  the 
corporate  body  in  each;  thus:  "Bath, — Seven  wards,  fourteen  aldermen, 
forty-two  councillors."  Corporate  name — "Mayor,  Aldermen,  and  Citizens 
of  the  City  of  Bath."  If  it  be  a  borough  instead  of  a  city,  the  word  "  Bur- 
gesses" is  used  instead  of  "Citizens."  The  act  provides  that  the  body 
corporate  in  each  of  said  places  "shall  take  and  bear  the  name  of  the 
Mayor,  Aldermen,  and  Burgesses  [or  Citizens,  in  case  of  a  city]  of  such 
borough,  and  by  that  name  shall  have  perpetual  succession,  and  shall  be 
capable  in  law,  by  the  council  hereinafter  mentioned  of  such  borough  to  do," 
be.  (sec.  6j. 

Membership. — Before  the  passage  of  the  act  under  consideration,  the 
qualifications  for  members  or  officers  of  municipal  corporations  depended 


116  MUNICIPAL     CORPORATIONS.  [Ch.  UJ. 


In  the  United  States. 

§  17.  The  proposition  which  lies  at  the  foundation  of 
the  law  of   corporations  of  this  country  is,  that  here,  all 

upon  the  charter,  usage  or  by-laws  of  the  particular  corporation — the  usual 
qualifications  being  that  the  person  claiming  to  be  admitted  to  the  freedom 
of  the  corporate  town  should  be  the  son  of  a  freeman,  or  should  have  served 
an  apprenticeship  to  a  freeman,  or  (in  some  instances)  married  his  daughter, 
or  acquired  the  privilege  by  gift  or  purchase;  but  this  act  provides  that 
hereafter  "no  person  shall  be  elected,  made,  or  admitted  a  burgess  or 
freeman  of  any  borough  by  gift  or  purchase  "  (sec.  3).  It  fixes  the  quali- 
fication of  burgesses  or  citizens,  thus:  "Every  male  person,  of  full  age, 
who  shall  have  occupied  any  house,  warehouse,  counting-house,  or  shop, 
within  any  borough  "  for  three  years,  "  and  during  the  time  of  such  occu- 
pation been  an  inhabitant  householder  within  the  borough,  or  within  seven 
miles  of  the  borough,  shall,  if  duly  enrolled,  be  a  burgess  of  such  borough  and 
a  member  of  the  body  corporate  of  the  mayor,  aldermen,  and  burgesses  of  such 
borough,  provided  he  shall  have  been  rated  in  respect  to  the  premises  so 
occupied  by  him  to  all  rates  made  for  the  relief  of  the  poor  within  the 
parish  "  (sec.  9).  Such  resident  occupiers  and  tax-payers,  only,  are  mem- 
bers of  the  corporate  body  of  the  place ;  all  the  other  inhabitants  are  no 
part  of  the  municipal  corporation,  though  subject  to  its  go\ eminent. 

Councillors,  How  Chosen,  &c.  — Upon  the  first  day  of  November,  in 
every  year,  the  burgesses  so  enrolled  in  every  borough  shall  openly  assemble, 
and  elect  from  the  persons  qualified  to  be  councillors  [who  must  have  the 
qualifications  of  a  burgess,  and  also  increased  pecuniary  and  rating  qualifi- 
cations], the  councillors  of  the  borough"  (sec.  40),  of  whom  one-third  part 
go  out  of  office  annually.  The  elections  are  held  before  the  mayor  and 
assessors,  and  the  mode  of  voting  (which  is  exactly  the  opposite  of  the 
ballot  in  America)  is  by  delivering  to  the  officers  of  election  a  voting-paper 
containing  the  name  and  abode  of  the  person  voted  for,  and  signed  with 
the  name  and  abode  of  the  voter.  It  is  thus  seen  that  the  burgesses  elect 
the  councillors,  whose  qualifications  are  fixed  by  the  statute,  and  whose 
number  in  each  incorporated  place  is  definite. 

Aldermen,  How  Chosen. — On  the  ninth  day  of  November,  in  every 
third  succeeding  year,  the  council  for  the  time  being  are  directed  to  elect, 
'•'■from,  the  councillors,  or  from  persons  qualified  to  be  councillors,  the  aldermen 
of  the  borough,"  who  are  one-third  in  number  of  the  councillors  (sec.  25). 
The  manner  of  election  is  prescribed,  namely,  by  every  member  of  the 
council  delivering  to  the  mayor,  or  chairman,  a  voting-paper  signed  by  the 
member  voting,  which  the  mayor,  or  chairman,  is  directed  openly  to  read. 
(Act  7  "Will.  IV.  and  1  Vict.  chap.  LXXVLH.  sec.  14;  16  and  17  Vict, 
chap.  LXXLX.  sec.  13.) 

Mayor,  How  Chosen. — At  the  meeting  of  the  council,  to  be  held  on  the 
ninth  day  of  November,  each  year,  the  council  are  directed  to  elect,  out  of 
the  aldermen  or  councillors,  a  fit  person  to  be  the  mayor,  who  shall  continue 


Ch.  III.]  CREATION     OF    PUBLIC     CORPORATIONS.  117 

corporations,  public  and  private,  exist  and  can  exist  only 
by  virtue  of  express  legislative  enactment,  creating,  or 
authorizing  the  creation  of  the  corporate  body.  Legislative 
sanction  is  absolutely  essential  to  lawful  corporate  existence. 
That  a  corporation  may  here  exist  by  prescription,  and  its 
existence  be  established  by  long  and  undisputed  user  of 
corporate  powers  may  (as  the  cases  hereafter  referred  to  will 
show)  be  true,  but  this  prescription  and  user  suppose  a  leg- 
in  office  for  one  year  (sec.  49)  and  until  his  successor  shall  have  accepted 
and  qualified  (6  and  7  Will.  IV.  chap.  CV.  sec.  4). 

Who  Compose  the  Council.   &c. — The  mayor,  the  aldermen,  and  the 
councillors,  for  the  time  being,  constitute  "tJie  council"   of  the  borough 
(sec.  25).    The  council,  as  we  have  seen,  elect  the  mayor  and  the  aldermen, 
and  it  also  appoints  the  clerk,  treasurer,  and  other  corporate  officers.     The 
corporate  body  acts  by  and  through  the  council,  who  have  the  authority  of 
the  old  corporations,  except  as  modified.     Provision  is  made  for  the  stated 
and  special  meetings  of  the  council;   the   notice   prescribed,  the  quorum 
fixed;  the  presiding  officer  defined,  &c,  &c.     Power  is  given  to  make  by- 
laws, and  the  powers  of  the  council  defined,  and  provision  is  made  for 
powers  vested  in  trustees,  under  sundry  local  acts  of  parliament,  for  paving, 
lighting,   supplying  with  water  or  gas,  cleansing,  watching,  regulating,  or 
improving,  or  for  providing  or  maintaining  a  cemetery  or  market  in  the 
boroughs  being  transferred  to  the  body  corporate  of  the  borough  (sec.  75, 
20  and  21  Vict.  chap.  L.).      By  other  acts  of  parliament  the  boundaries  of 
boroughs  are  fixed  (6  and  7  Will.  IV.  chap.  CHI.  1836);  the  "administra- 
tion of  the  borough  fund  "  regulated  (II.  chap.  CIV.) ;  "  the  administration 
of  justice"  provided  for  {lb.  chap.  CV. ;  13  and  14  Vict.  chap.  XCL);  bor- 
ough rates  regulated  (7  Will.  IV.  and  1  Vict.  chap.  LXXXI.  1837 ;  2  and  3 
Vict.  chap.  XXVIII. ;  3  and  4  Vict.  chap.  XXVIII. ;  4  and  5  Vict.  chap. 
XLVIII. ;  5  and  6  Vict.  chap.  XCVIII.) ;  power  to  sell  and  mortgage  prop- 
erty and  to  charge  rates  given  (5  and  6  Vict.  chap.  XCVILI. ;  23  and  24 
Vict.  chap.  XVI.);  provision  made  as  to  maintaining  bridges  (13  and  14 
Vict.  chap.  LXIV.  1850);  to  promote  public  libraries  (18  and  19  Vict.  chap. 
LXX.  1355;  29  and  30  Vict.  chap.  XCIV.) ;  in  relation  to  the  police  (19  and 
20  Vict.  chap.  LXIX. ;  27  and  28  Vict.  chap.  LXIV. ;  28  and  29  Vict.  chap. 
XXXV.)  ;  the  management  of  highways,  by  enabling  councils  to  adopt  parish 
roads  and  apply  their  funds  to  their  repair  (25  and  26  Vict.  chap.  LXL); 
for  safe  keeping  of  petroleum  (25  and  26  Vict.  chap.  LXVI.) ;  for  the  pro- 
tection of  gardens  and  ornamental  grounds  (26  and  27  Vict.  chap.  XUL); 
in  relation  to  prisons  (28  and  29  Vict.  chap.  CXXVI.  known  as  "The  Pris- 
ons Act,  1865;"  29  and  30  Vict.  chap.  C).     A  variety  of  other  statutes,  of 
less  importance,  in  relation  to  municipal  corporations,    have  been  passed 
since  the  general  act  of  1835,  some  amendatory  of  it  and  some  making  new 
and  additional  provisions.     By  the  famous  Disraeli  reform  bill  of  1867,  the 
right  to  vote  for  a  member,  or  members,  to  serve  in  parliament  for  bor- 
oughs was  extended  to  large  numbers  or  classes  of  persons  who  did  not 
before  possess  the  franchise.     New  American  Cyclopedia,  1868,  p.  327. 


118  MUNICIPAL     CORPORATIONS.  [Ch.  IIL 

islative  grant.     Instances  of  prescriptive  corporations,  with 
ns,  are  rare  and  exceptional.     But  corporations,  public,  and 
private,   by  virtue   of  direct  legislative  authorization,  are 
being  created  in  such  vast  nnmbers  as  to  constitute  one  of 
the  most  marked  and  important  features  of  the  present  age. 
Speaking  of  "corporations  by  statute,"  in   England,  Mr. 
YYillcock  says  that  "the  legislature  has  not  often  exercised 
the  power  of  creating  municipal  corporations,  because  it  has 
been  esteemed  a  flower  of  the  prerogative."1   This  has  refer- 
ence to  a  period  anterior  to  the  famous  Municipal  Corpora- 
tions Act  of  September  9,   1835  (5  and  6  Will.  IT.   chap. 
LXXVI.),  by  which  parliament  undertook  the  regulation  of 
this  important  subject.2    The  existing  law  of  corporations  is 
essentially  of  modern  growth,  and  has  yet  largely  to  be  de- 
veloped and  settled.     Having  occasion  to  refer  to  this  sub- 
ject in  a  recent  case  in  Illinois,  a  distinguished  judge  said: 
"Formerly  but  few  private  corporations  were  created,  and 
these  cut  so  small  a  comparative  figure  in  the  destinies  of 
states,  that  they  attracted  but  little  attention  on  the  part  of 
law  makers,  and  were  but  little  studied  by  the  courts.    Even 
in  England,  until  a  very  recent  period,  both  public  and  pri- 
vate corporations  were  created  by  royal  prerogative,  with- 
out the  intervention  of  parliament,  and  were  invested  with 
such  powers  and  privileges  as  favorites  might  ask,  or  the 
public  good  be  supposed  to  require.     But  even  then  such 
corporations  were  rare.     Now  they  have  become  among  the 
greatest  means  of  state  and  national  prosperity.     It  is  prob- 
ably true,  that  more  corporations  were  created  by  the  legis- 
lature of  Illinois,   at  its  last  session,   than  existed  in  the 
whole  civilized  world  at  the  commencement  of  the  present 
century.     This  state  of  things  has  necessarily  led  to  a  more 
careful  study  of  the  whole  subject,  both  by  legislators  and 
the  courts.3    Not  only  are  commercial  or  business  corpora- 
tions being  thus  multiplied,  but  municipal  corporations,  in 
all  of  the  states,   are  constantly  created  and  universally 
adopted  as  part  of  the  ordinary  machinery  of  government, 
so  that  it  is  rare  to  find  a  town  or  city  of  any  size  not  incor- 

1  Willc.  on  Munic.  Corp.  25.  !  Ante,  Sec.  16. 

s  Per  Caton,  J.,  Railroad  Co.  v.  Dalby,  19  111.  353,  1857.  See,  also, similar 
observations  of  Rogers,  J.,  in  Bushnell  v.  Insurance  Co.  15  Serg.  &  Rawle, 
176.  177. 


Ch.  III.]         CREATION    OF     PUBLIC     CORPORATIONS.  119 

porated  and  invested  with  tli—  power  of  local  government. 
There  are  in  the  United  States  thousands  of  incorporated 
places  acting  under  special  charters  granted  by  the  states  or 
general  incorporation  acts  passed  by  them. 

§  18.  The  power  of  congress  to  create  or  authorize  the 
creation  of  corporations,  public  or  private,  whenever  these 
become  an  appropriate  means  of  exercising  any  of  the  con- 
stitutional powers  of  the  general  government,  or  of  facilitat- 
ing its  lawful  operations  in  the  states  or  territories,  must  be 
taken  to  be  conclusively  settled  by  the  supreme  court.1 
This  power  has  been  exercised  on  important  occasions,  such 
as  incorporating  the  banks  of  the  United  States,  the  national 
banks,  and  the  Pacific  Railroad  Company,  and,  within  the 
above  limitations,  it  is  no  longer  disputed.  Congress 
habitually  passes  acts  for  the  organization  of  territories  and 
territorial  governments,  which  are,  in  substance  and  effect, 
municipal  corporations  on  a  large  scale  and  of  a  peculiar 
character ;  but  it  is  not  within  the  power  of  congress  to 
establish  ordinary  municipal  corporations  within  the  limits 
of  the  states,  and  it  has  never  attempted  to  exercise  it. 

In  a  territorial  organic  act,  a  provision  that  the  power  of 
the  territorial  legislature  "  shall  extend  to  all  rightful  sub- 
jects of  legislation,''''  authorizes  the  legislature  to  create 
municipal  corporations,  and  to  invest  them  with  the  power 
to  make  ordinances,  and  to  provide  corporation  courts  in 
which  to  enforce  them.  And  such  courts  may  be  provided, 
although  by  the  organic  act  it  is  declared  that  the  judicial 
power  of  the  territory  shall  be  vested  in  a  supreme  court, 
district  courts,  probate  courts,  and  justices  of  the  peace.2 

1  McCullough  v.  Maryland,  4  Wheat.  316;  Osbom  v.  Bank  of  U.  8.,  9  lb. 
738;  Thompsons  Pacific  Railroad  Co.,  9  Wall.  579;  Pacific  Railroad  v. 
Lincoln  Co.,  1  Dillon  C.  C.  314.  1871. 

2  State  v.  Young,  3  Kansas,  445,  I860;  Burnes  v.  Achison,  2  lb.  454; 
S.  P.  Reddick  v.  Amelia,  1  Mo.  5,  1821.  In  this  case  the  objection  made 
was,  that  such  a  legislature  was  not  sovereign,  and  that  nothing  short  of 
sovereign  power  could  create  a  corporation  The  answer  given  was,  that 
congress  could  give,  and  had  given,  the  power  to  legislate  on  audi  subjects. 
That  a  territorial  legislature,  vested  with  general  legislative  powers,  may 
create  a  corporation,  which  is  not  affected  by  the  subsequent  adoption  of  a 
state  constitution,  was  held  in  Vincennes  University  v.  Indiana,  14  How. 
268,  1852.  See,  also,  Vance  v.  Bank,  1  Blackf.  (Ind.)  80;  Myers  v.  Bank, 
20  Ohio,  283;  Deitz  r.  City,  1  Colorado,  323. 


120  MUNICIPAL     CORPORATIONS.  [Ch«  Hi, 

§  19.  Ill  this  country,  until  comparatively  a  recent 
period,  municipal  corporations  have  been  created  singly, 
each  with  its  special  or  separate  charter  passed  by  the  legis 
lature  of  the  state.  These  charters,  in  all  of  the  states,  were 
framed  after  the  same  general  model,  but  in  the  extent  of 
the  special  powers  conferred,  and  in  the  peculiar  constitu- 
tion of  the  governing  body,  and  the  like,  there  was  great 
variety.  It  will  be  useful  to  notice  the  outline  features  of 
one  of  these  charters,  since  it  constitutes  the  organic  act  of 
the  corporation,  and  bestows  upon  it  its  legal  character. 
Such  a  charter  usually  sets  out  with  an  incorporating 
clause  declaring,  "that  the  inhabitants1  of  the  town  of 
(naming  it),  or  city  of  (naming  it),  are  hereby  constituted  a 
body  politic  and  corporate  by  the  name  and  style  of  the 

'town  of ,'  or  'city  of ,'  and  by  that  name  shall 

have  perpetual  succession,  may  use  a  common  seal,  sue  and 
be  sued,  purchase,  hold,  and  sell  property,"  &c.  The 
charter  then  defines  the  territorial  boundaries  of  the  town 
or  city  thus  incorporated.  After  that  follow  provisions  re- 
lating to  the  governing  body  of  the  corporation,  usually 
styled  the  town  or  city  council.  This  is  generally  composed 
of  one  body,  though  in  some  instances  of  two  ;  the  members 
being  called  aldermen,  councilmen,  or  trustees.     The  corpo- 

It  is  now  provided  by  act  of  congress,  "  That  the  legislative  assemblies 
of  the  several  territories  of  the  United  States,  shall  not,  after  the  passage  of 
this  act,  grant  private  charters  or  especial  privileges,  but  they  may,  by 
general  incorporation  acts,  permit  persons  to  associate  themselves  together 
as  bodies  corporate  for  mining,  manufacturing,  and  other  industrial  pur- 
suits."    Act  of  March  2,  1867,  14  Stats,  at  Large,  426,  sec.  1. 

1  In  public  corporations,  as  cities,  towns,  parishes,  school-districts,  mem- 
bership is  constituted  by  living  within  certain  limits,  whatever  may  be  the 
desire  of  the  individual  thus  residing  or  that  of  the  municipal  or  public 
body.  In  private  corporations,  on  the  other  hand,  especially  those  organ- 
ized for  pecuniary  profit,  membership  is  constituted  by  subscribing  to  or 
receiving,  with  the  assent  of  the  corporation,  when  that  is  necessary,  trans- 
fers of  its  stock.  Overseers  of  Poor,  &c.  v.  Sears,  22  Pick.  122,  130,  per 
Shaw,  C.  J. ;  Oakes  v.  Hill,  10  Pick.  333,  346,  per  Morton,  J. ;  ante,  sec.  9, 
and  notes.  It  is  the  citizens  or  inhabitants  of  a  city,  not  the  common 
council  or  local  legislature,  who  constitute  the  "  corporation  "  of  the  city. 
The  officers  of  the  council  and  other  charter  officers  are  the  agents  or 
officers  of  the  corporation.  Lowler  v.  Mayor,  &c.  of  N.  T.,  5  Abbott's  Pr. 
R.  325 ;  Clarke  v.  Rochester,  24  Barb.  446,  1857. 


Ch.  III.]       CREATION     OF     PUBLIC     CORPORATIONS.  121 

ration  is  divided  into  wards,  and  each  ward  elects  one  or 
more  aldermen,   the  number  being  specified  and  definite. 
The    qualifications     of     the     voters    are    fixed    by    the 
charter,    which    are,    usually,    that    the    voter    shall    be 
a  male  citizen  of   the   United   States    and    of    the    state, 
be  of  age,  and  a  resident,  for  a  specified  time,  within  the 
limits  of  the  corporation.      The  mode  of  holding  elections 
is  specified  ;  and  the  power  is  often  given  to  the  council  to 
canvass  returns,  and  to  settle  disputed  elections  to  corporate 
offices.     Provision  is  made  for  the  election  of  a  mayor,  or 
other  chief  executive  officer  of  the  corporation,  and  his 
duties  defined.     The  charter  contains  a  minute  and  detailed 
enumeration  of  the  powers  of  the  city  council,  which  are 
usually  numerous ;  the  most  important  of  which  are,  the 
authority  to  create  debts  (sometimes  restricted) ;  to  levy  and 
collect  taxes  within  the  corporation,  for  corporate  purposes  ; 
to  make  local  improvements  and  assessments  to  pay  there- 
for; to  appoint  corporate  officers;  to  enact  ordinances  to 
preserve  the  health  of  the  inhabitants,  to  present  and  abate 
nuisances,  to  prevent  fires,  to  establish  and  regulate  markets, 
to  regulate  and  license  given  occupations,  to  establish  a 
police  force,  to  punish  offenders  against  ordinances ;   to 
open  and  grade  and  improve  streets  ;  to  hold  corporation 
courts,  &c,  &c.     When  it  is  remembered  that  the  charter 
of  such  a  corporation  is  its  constitution,  and  gives  it  all  the 
powers  it  possesses  (unless  other  statutes  are  applicable  to 
it  ,  its  careful  study,  in  any  given  case,  is  indispensable  to 
an  understanding  of  the  nature  of  the  powers  it  confers,  the 
duties  it  enjoins,  and  liabilities  it  creates.     The  construction 
of  its  various  provisions,  and  the  determination  of  the  rela- 
tion which  these  bear  to  the  general  statutes  of  the  state  ; 
how  far  the  charter  controls,  or  how  far  it  is  controlled  by 
other  legislation,  are  among  the  most  difficult  Tjroblems  which 
perplex  the  lawyer  and  the  judge.     The  study  of  a  question 
of   corporation   law  begins  with  the  charter,  but  it  must, 
oftentimes,  be  pursued  into  the  general  statutes  and  legisla- 
tive policy  of  the  state,  and  after  this  into  the  broad  field  of 
general  jurisprudence. 

§  20.    Within  a  period  comparatively  recent,  the  legisla- 
tures of  a  number  of  the  states,  following  the  example  of  the 


122  MUNICIPAL     CORPORATIONS.  [Ch.  IIL 

English  Municipal  Corporations  Act  of  5  and  6  Will.  IV. 
cap.  LXXYI.  heretofore  mentioned,  have  passed  general 
acts  respecting  municipal  corporations.  These  acts  abolish 
all  special  charters,  or  all  with  enumerated  exceptions,  and 
enact  general  provisions  for  the  incorporation,  regulation, 
and  government  of  municipal  corporations.  The  usual 
scheme  is  to  grade  corporations  into  classes,  according  to 
their  size,  as  into  Cities  of  the  First  Class,  Cities  of  the 
Second  Class,  and  Towns,  or  Villages,  and  to  bestow  upon 
each  class  such  powers  as  the  legislature  deems  expedient ; 
but  the  powers  and  mode  of  organization  of  corporations 
of  each  class  are  uniform.1  General  incorporation  acts, 
rather  than  special  charters,  would  seem  clearly  to  be  the 

1  Ohio.—  By  the  Towns',  Cities',  and  Villages'  Act  of  May  3,  1852 
(Swan's  Stat.  954),  all  corporations  existing  for  the  purposes  of  municipal 
government  are  thereby  organized  into  cities  and  incorporated  villages.  (Sec. 
1.)  In  respect  to  the  exercise  of  certain  corporate  powers,  municipal  cor- 
porations are  divided  into  classes,  thus:  1.  Cities  of  first  class,  which  com- 
prise all  cities  having  a  population  exceeding  twenty  thousand  inhabitants; 
2.  Cities  of  the  second  class,  which  comprise  all  cities  not  embraced  in  the 
first  class;  3.  Incorporated  villages  ;  and  4.  Incorporated  villages  for 
special  purposes.     lb.  sec.  39   eb  seq.     These  are   ' '  declared  to  be  bodies 

politic  and  corporate,  under  the  name  and  style  of  the  city  of ,  or  the 

incorporated  village  of ,  as  the  case  maybe;   capable  to  sue  and  be 

sued,  to  contract  and  be  contracted  with,  to  acquire,  hold,  and  possess 
property,  real  and  personal,  to  have  a  common  seal,  and  to  exercise  such 
other  powers,  and  to  have  such  other  privileges,  as  are  incident  to  muni- 
cipal corporations  of  like  character  or  degree,  not  inconsistent  with  this 
act  or  the  general  laws  of  the  state."  lb.  sec.  18.  These  powers  and  priv- 
ileges are  then  specified  with  great  minuteness,  twenty  sections  of  the  act 
being  devoted  to  this  purpose.  Incorporated  villages  are  governed  by  one 
mayor,  one  recorder,  and  five  trustees,  elected  annually;  the  mayor,  re- 
corder, and  trustees  constituting  the  village  council,  any  five  of  whom 
make  a  quorum,  lb.  sec.  43.  The  corporate  authority  of  cities  is 
vested  in  the  mayor,  one  board  of  trustees  (two  from  each  ward),  and 
who  compose  the  city  council,  together  with  such  officers  as  are  mentioned 
in  the  act,  or  as  may  be  created  under  its  authority,     lb.  sec.  52  et  seq. 

"  The  governing  all  cities  and  villages  under  one  general  law,  was  a 
new  experiment,  supposed  to  be  required  by  the  present  constitution.  It 
was  to  be  expected,  that,  in  the  working  of  the  experiment,  omissions,  if 
not  mistakes,  would  be  discovered,  to  be  corrected  by  additional  legisla- 
tion. It  will  be  a  wTork  of  care  and  time  to  perfect  an  orderly  and  harmo- 
nious system."  Pe-r  Gholson,  J.,  in  Thomas  v.  Ashland,  12  Ohio  St.  124, 
loO,  1861.    Infra,  sec.  24a. 

Iowa. — The  Ohio  act  is,  in  substance,  adopted  in  Iowa.     Revision  1860, 


Ch.  III.]         CREATION     OF     PUBLIC     CORPORATIONS.  123    ' 

best  method  of  creating  and  organizing  municipal  corpora 
tions.  1.  It  tends  to  prevent  favoritism  and  abuse  in  pro- 
curing extraordinary  grants  of  special  powers.  2.  It 
secures   uniformity  of    rule  and  construction.     All  being 

chap.  LI.     But  it  does  not  apply  to  cities  having  special  charters,  unless 
adopted  by  them.     Burke  v.  Jeffries,  20  Iowa,  145. 

In  Tennessee  (Acts  1849,  Chap.  17)  provision  is  made  by  general  act  for 
the  incorporation  of  towns,  cities,  and  villages.  The  constitution  of  Ten- 
nessee declares,  that  "  The  legislature  shall  have  power  to  grant  charters 
of  incorporation  as  they  may  deem  expedient  for  the  public  good."  Art. 
XL  sec.  7.  In  the  State  v.  Armstrong,  3  Sneed,  634,  it  was  held,  that  the 
act  of  1856,  by  which  full  power  to  create  corporations,  and  determine  the 
extent  of  their  powers,  was  given  to  the  Circuit  Courts,  was  unconstitu- 
tional, on  the  ground  that  the  legislature  could  not  delegate  its  authority  to 
the  courts.  But  in  the  Mayor,  &c.  v.  Shelton,  1  Head,  24,  1858,  it  was 
held,  that  the  act  of  1849— which  was  a  general  statute  for  the  incorpora- 
tion of  towns  and  cities,  and  by  which  a  petition  was  to  be  presented  by 
the  inhabitants  of  a  place  proposing  to  organize  under  the  act,  to  the 
County  Court,  which  had  power  simply  to  record  the  petition  and  desig- 
nate the  boundaries  of  the  corporation— was  not  in  conflict  with  the  con- 
stitution, as  the  statute,  and  not  the  court,  determined  the  extent  and 
nature  of  the  powers  of  the  corporation. 

Missouri.— A.  general  act  for  the  incorporation  of  towns  was  passed  in 
Missouri  in  1845,  and  it  was  held  not  unconstitutional  by  reason  of  certain 
duties  which  it  imposes  on  the  County  Court  with  reference  to  organization 
of  towns  under  the  act,  as  these  duties  are  not  legislative  but  judicial,  and 
the  law  itself,  and  not  the  court,  declares  the  powers  of  which  the  corpo- 
ration shall  be  possessed.     Kayser  v.  Trustees,  &c,  16  Mo.  88,  1852. 

Indiana. — The  general  law  of  1857,  for  the  incorporation  of  cities,  is 
not  unconstitutional  for  want  of  uniformity  in  the  mode  of  their  organiza- 
tion. Lafayette  v.  Jenners,  10  Ind.  70,  80,  1857.  See  also  Welker  v. 
Potter,  18  Ohio  St.  85. 

Pennsylvania.— A.  general  act  was  passed  in  1851,  designed  to  form  a 
system  for  the  regulation  of  boroughs  incorporated  thereafter.  Comw.  v. 
Montrose,  52  Pa.  St.  391. 

North  Carolina.— By  general  act,  every  incorporated  town  may  elect, 
each  year,  not  less  than  three,  nor  more  than  seven,  commissioners,  who  are 
a  body  corporate  and  the  governing  body  of  the  town.  These  commis- 
sioners are  elected  by  the  vote  of  the  citizens  of  the  place.  At  the  same 
time  they  are  also  to  elect  a  mayor,  who  presides  at  the  meetings  of  the 
commissioners,  but  who  has  no  vote  except  in  case  of  a  tie.  The  mayor  is 
both  a  peace  officer  and  a  judicial  officer,  with  the  same  jurisdiction  as  a 
justice  of  the  peace,  with  power  also  to  "  hear  and  determine  all  cases  that 
may  arise  upon  the  ordinances  of  the  commissioners,"  &c.  The  commis- 
sioners may  levy  certain  specified  taxes,  and  make  ordinances  in  relation  to 
their  officers,  records,  markets,  nuisances,  the  repair  of  streets  and  bridges 


124  MUNICIPAL     CORPORATIONS.  [Ch.  IIL 

created  and  endowed  alike,  real  wants  are  the  sooner  felt 
and  provided  for,  and  real  grievances  the  sooner  redressed. 

By  Implication. 
§  21.  It  is  well  settled  in  England  that,  while  a  corpora- 
tion must  commence  or  be  instituted  by  the  proper  au- 
thority, yet  no  fixed,  prescribed,  or  precise  form  of  words 
is  necessary,  in  order  to  create  a  corporation.  While  the 
words  " to  found,"  "to  erect  or  establish,"  or  "to  incor- 
porate," are  commonly  used  to  evince  the  intention  to  erect 
or  create  a  body  politic,  they  are  not  necessary.'     The  king 

in  the  town,  &c,  &c.  These  general  provisions  apply  to  all  incorporated 
towns  when  not  inconsistent  with  special  charters  or  acts  in  reference 
thereto.     Rev.  Code  1854,  chap.  III.  p.  586. 

New  York. — In  this  state  there  are  cities  with  local  and  special  charters, 
and  also  towns  whose  powers,  duties,  and  privileges  are  particularly  pre- 
scribed by  statute.  Each  town  is  a  body  corporate  for  specified  purposes ; 
but  it  is  declared  that  "  No  town  shall  possess  or  exercise  any  corporate 
powers  except  such  as  are  enumerated  in  this  chapter,  or  shall  be  specially 
given  by  law,  or  shall  be  necessary  to  the  exercise  of  the  powers  so  enume- 
rated or  given."  Rev.  Sts.  part  I.  chap.  XI.  p.  337,  sees.  1,  2.  "  The  sev- 
eral towns  in  this  state,"  says,  Denio,  J.,  in  Lorillard  v.  The  Town  of 
Monroe,  11  N.  Y.  (1  Kern.)  392,  1854,  "are  corporations  for  certain 
special  and  very  limited  purposes,  or,  to  speak  more  accurately,  they  have 
a  certain  limited  corporate  capacity.  They  may  purchase  and  hold  lands 
within  their  own  limits  for  the  use  of  their  inhabitants.  They  may,  as  a 
corporation,  make  such  contracts  and  hold  such  personal  property  as  may 
be  necessary  to  the  exercise  of  their  corporate  or  administrative  powers, 
and,  as  a  necessary  incident,  may  sue  and  be  sued,  where  the  assertion  of 
their  corporate  rights,  or  the  enforcement  against  them  of  their  corporate 
liabilities,  shall  require  such  proceedings.  (1  R.  S.  337,  sec.  1  et  seq.)  In 
all  other  respects — for  instance,  in  everything  which  concerns  the  adminis- 
tration of  civil  or  criminal  justice,  the  preservation  of  the  public  health  and 
morals,  the  conservation  of  highways,  roads,  and  bridges,  the  relief  of  the 
poor,  and  the  assessment  and  collection  of  taxes — the  several  towns  are 
political  divisions,  organized  for  the  convenient  exercise  of  portions  of  the 
political  power  of  the  state,  and  are  no  more  corporations  than  the  judicial, 
or  the  senate  and  assembly  districts.  lb.  sec.  2.  The  functions  and  duties 
of  the  several  town  officers  respecting  these  subjects,  are  judicial  and  admin- 
istrative, and  not  in  any  sense  corporate  functions  or  duties,"  and  hence,  as 
to  such  subjects,  the  towns  as  corporations  are  not  liable  for  any  default  or 
malfeasance  of  these  officers.  See,  as  to  the  corporate  capacity  of  towns  in 
New  York,  Denton  v.  Jackson,  2  Johns.  Ch.  R.  320;  North  Hempstead  v. 
Hempstead,  2  Wend.  109;  affirming  S.  C.  Hopk.  288;  Cornell  v.  Guilforl, 
1  Denio,  510. 

1  10  Co.  27  a,  28  a,  29  b,  30 ;  1  Kyd,  62 ;  2  Kent  Com.  27. 


Ch.  III.]         CREATION     OF     PUBLIC     CORPORATIONS.  125 

grants  a  charter  to  the  men  of  Dale,  that  they  may  annually 
elect  a  mayor,  and  plead  and  be  impleaded  by  the  name  of 
the  mayor  and  commonalty.  This  is  considered  to  be  suffi- 
cient to  incorporate  them.1  So  a  grant  by  a  charter  con- 
taining no  direct  clause  of  incorporation  to  the  inhabitants 
of  a  town  "that  their  town  shall  be  a  free  borough,  incor- 
porates it.a  So,  also,  a  grant  by  the  king  to  the  men 
of  Dale  that  they  be  discharged  of  tolls,  incorporates 
them  for  this  particular  purpose,  but  does  not  enable  them 
to  purchase.'  The  settled  doctrine  is  that  a  corporation 
may  be  created  by  implication,  as  well  as  by  the  use  of 
words.  But  this  implication,  to  be  sufficient,  must  clearly 
evince  or  express  the  intention  to  establish  or  constitute  a 
body  politic  or  corporate— that  is,  to  invest  it  with  corporate 
powers  and  privileges.  But  the  absence  of  express  pro- 
vision respecting  the  incidents  which  the  law  tacitly  annexes 
to  corporations,  is  considered  immaterial.  Thus  the  omis- 
sion in  the  charter  or  act  of  the  words  "to  plead  and  be 
impleaded,"  or  "to  have  a  seal,"  or  "to  make  by-laws," 
would  not  make  it  essentially  defective.4  So  it  would  not 
be  essentially  defective  if  the  name  was   omitted,  if  the 

1  21  Edw.  IV.  56.  The  doctrine  of  a  corporation  by  implication  orig- 
inated in  the  time  of  Edward  IV.     lb.  8  Edw.  IV.  28.     Post,  sec.  431. 

'  Kyd,  62,  cites  Firm.  Burg.  chap.  II. ;  Madox  Hist.  Exch.  402. 

8  Vin.Abr.  Corp.  F.  pi.  6;  lb.  pi.  4;  Bagot's  Case,  7  Edw.  IV.  29;  Grant 
on  Corp.  43,  note  e,  and  cases  cited. 

4  1  Rol.  Abr.  513:  1  Kyd,  63;  The  Conservators,  &c.  v.  Ash,  10  Barn.  & 
Cress.  349;  21  Eng.  C.  L.  97,  1829.  "It  is  not  necessary,"  says  Mr.  Kyd, 
"  that  the  charter  should  expressly  confer  those  powers  without  which  a  col- 
lective body  of  men  cannot  be  a  corporation,  such  as  the  power  of  suing 
and  being  sued,  and  to  take  and  grant  property,  though  such  powers  are,  in 
general,  expressly  given."  1  Kyd  Corp.  63.  Thus,  in  the  case  of  the  Bor- 
ough of  Yarmouth,  1609,  2  Brownlow  &  Goldsb.  292,  part  II.  it  was  decided 
by  the  common  bench,  per  Lord  Coke,  that  a  grant  of  incorporation  to  the 
burgesses  or  citizens  of  a  borough  or  city,  which,  being  an  old  grant,  should 
be  favorably  construed,  was  good,  without  the  words  "their  successors." 
And  see,  on  this  subject,  the  learned  opinion  of  Shaw,  C.  J.,  in  Overseers  of 
Poor,  &c.  v.  Sears,  22  Pick.  122,  130,  1839.  He  says  :  "The  mode  of  perpet- 
uating the  existence  of  a  corporate  body  is  not  essential ;  all  that  is  essen- 
tial is  that  some  mode  be  provided  by  the  charter  or  act  by  which  it  is  con- 
stituted, or  by  the  general  laws  of  the  government,  by  means  of  which  it 
shall  be  so  perpetuated."  22  Pick.  130;  The  Conservators  v.  Ash,  10  Barn. 
&  Cress.  249;  21  Eng.  C.  L.  97. 


126  MUNICIPAL     CORPORATIONS.  [Ch.  III. 

name  could  be  ascertained  from  the  terms  of  tlie  charter  or 
act,  or  from  the  nature  of  the  thing  or  matters  granted.' 
Certain  attributes  or  powers  are  absolutely  essential  to  con- 
stitute a  body  corporate,  such  as  perpetual  succession,  the 
right  to  contract,  to  sue  and  be  sued  as  a  corporation,  &c. 
Now  if  the  charter  or  act,  which  is  relied  upon  as  creating 
a  body  corporate  by  implication,  instead  of  simply  omitting 
to  express  these  essential  properties,  negatives  and  ex- 
cludes them,  it  is  plain  that  the  body  would  not  be  deemed 
incorporated.* 

§  22.  Although  corporations  in  this  country  are  created 
by  statute,  still  the  rule  is  here  also  settled  that  not  only 
private  corporations  aggregate,  but  municipal  or  public  cor- 
porations, may  be  established  without  any  particular  form 
of  words,  or  technical  mode  of  expression,  though  such 
words  are  commonly  employed.'  If  powers  and  privileges 
are  conferred  upon  a  body  of  men,  or  upon  the  residents 
or  inhabitants  of  a  town  or  district,  and  if  these  can- 
not be  exercised  and  enjoyed,  and  if  the  purposes  in- 
tended cannot  be  carried  into  effect,  without  acting  in  a 
corporate  capacity,  a  corporation  is,  to  this  extent,  cre- 
ated by  implication.  The  question  turns  upon  the  intent 
of  the  legislature,  and  this  can  be  shown  constructively  as 
well  as  expressly/  This  is  well  illustrated  in  a  case  in 
Massachusetts, B  where  the  question  was  whether  the  plain- 

1  Trustees  v.  Parks,  10  Maine  (1  Fairf.)  441 ;  School  Com.  v.  Dean,  2 
Stew.  &  Port.  (Ala.)  190,  1832. 

'  Grant  on  Corp.  30. 

3  Thomas  v.  Daken,  22  "Wend.  9,  84,  per  Cowen,  J.,  and  authorities  cited; 
Bow  v.  Allentown,  34  N.  H.  351,  372;  Stebbins  v.  Jennings,  10  Pick.  172; 
Benton  v.  Jackson,  2  Johns.  Ch.  325,  326,  1817;  Mahoney  v.  The  Bank  of  the 
State,  4  Ark.  620,  1842;  S.  C.  well  digested  in  Angell  &  Ames  on  Corp.  sec. 
77;  North  Hempstead  v.  Hempstead,  2  Wend.  109.  133,  opinion  by  Savage, 
C.  J. ;  Conservators  of  River  Tone  v.  Ash,  10  Barn.  &  Cress.  349 ;  Jeffreys  v. 
Garr,  2  B.  and  Adol.  841 ;  ex  jmrte  Newport  Trustees,  16  Sim.  346;  2  Kent 
Com.  27. 

4  Same  cases  last  cited. 

6  Inhabitants,  &c.  v.  Wood,  13  Mass.  193,  1816 — Mr.  Fessenden,  for  the 
plaintiff,  and  Mr.  Greenleaf,  for"  the  defendant.  In  Bow  v.  Allentown,  34 
N.  H.  451,  it  wa3  held  that  the  annexation,  by  the  legislature,  of  other  ter- 
ritory to  the  town  of  Allentown  made  that  a  corporate  town  by  implication. 


Ch.  III.]         CREATION     OF     PUBLIC     CORPORATIONS.  127 

tiffs  were  a  corporate  body,  with  poorer  to  sue.  They  were 
not  incorporated  expressly.  But,  by  statute,  the  inhabi- 
tants of  the  several  school  districts  were  empowered,  at  any 
meeting  properly  called,  tj  raise  money  to  erect,  repair,  or 
purchase  a  schoo  house,  to  determine  its  site,  &c,  &c,  the 
majority  binding  the  minority.  The  cause  was  argued  by 
able  counsel,  and,  after  several  consultations,  the  supreme 
court  all  finally  agreed  in  the  opinion  that  the  plaintiffs  pos- 
sessed sufficient  corporate  powers  to  maintain  an  action  on 
a  contract  to  build  a  school-house,  and  to  make  to  them  a 
lease  of  land.  But  the  intention  of  the  legislature,  where 
it  is  sought  to  show  that  a  corporation  has  been  created  by 
implication,  must  plainly  appear.1 

Acceptance  of  Charter. 

§  23.  The  rule  which  applies  to  private  corporations, 
that  the  incorporating  act  is  ineffectual  to  constitute  a  cor- 
porate body  until  it  is  assented  to  or  accepted  by  the  corpo- 
rators, has  no  application  to  statutes  creating  municipal 
corporations.  These  are  imperative  and  binding  without 
any  consent,  unless  the  act  is  expressly  made  conditional. 
All  who  live  within  the  limits  of  the  incorporated  district 
are  bound  by  them,  and  can  only  withdraw  from  the  cor- 
poration by  removal.  Over  such  corporations  the  legislature, 
unless  restrained  by  the  constitution,  has  entire  control ; 
and  unless  otherwise  provided  by  the  act  itself,  or  a  differ- 
ent intention  be  manifested,  the  public  corporation  is  legal]  y 
constituted  as  soon  as  the  incorporating  act  declaring  it  to 
exist  goes  into  effect."    But  while  the  legislature  is  not 

if  it  was  not  so  before;  and  such,  also,  was  the  effect,  undsr  the  constitution 
of  New  Hampshire,  of  a  grant  to  a  place  having  less  than  one  hundred  and 
fifty  polls  to  send  a  representative.  A  legislative  grant  gives  capacity  to 
hold  the  thing  granted.     Lord  v.  Bigelow,  6  Verm.  465. 

1  Medical  Institute  v.  Patterson,  1  Denio,  61 ;  S.  C.  affirmed  in  court  of 
errors,  5  ib.  618,  1846;  Myers  v.  Irwin,  2  Serg.  &  Rawle,  368,  1816;  Angell 
&  Ames,  Sec.  79,  and  cases  cited;  Wells  v.  Burbank,  17  N.  H.  893;  Society, 
&c.  v.  Town  of  Pawlet,  4  Pet.  (U.  S.)  480,  502.  To  establish  a  corporation 
by  implication,  says  Shaw,  C.  J.,  in  Stebbins  v.  Jennings,  10  Pick.  172,  it 
must  appeal  that  the  rights  and  powers  conferred  can  only  be  enjoyed  by 
the  exercise  of  corporate  powers,  and,  therefore,  if  such  powers  are  not 
necessary,  they  are  not  impliedly  given. 

'  Berlin  v.  Gorham,  34  N.  H.  266,  1856,  per  Bell,  J.,  where  it  is  accord 


128  MUNICIPAL    CORPORATIONS.  [Ch.  III. 

bound  to  obtain  the  acceptance  or  assent  of  the  municipa-1 
corporation,  it  is  well  established  that  a  provision  in  a  mu- 
nicipal charter  that  it  shall  not  take  effect  unless  assented 
to  or  accepted  by  a  majority  of  the  inhabitants,  is  not  un- 
constitutional, it  being  in  no  just  sense  a  delegation  of  leg- 
islative power,  but  merely  a  question  as  to  the  acceptance 
or  rejection  of  a  charter.1     So  a  provision  in  a  charter,  or 

ingly  held,  that  to  make  an  incorporation  of  a  town  effectual,  it  is  not  nec- 
essary that  there  should  be  a  legal  town  meeting  holden  in  it.  See  also 
People  v.  Wren,  4  Scam.  269 ;  Warren  v.  Charlestown,  2  Gray,  104 ;  Mills  v. 
Williams,  11  Ire.  558;  State  v.  Curran,  7  Eng.  321;  Fire  Department  v. 
Kip,  10  Wend.  267;  People  v.  Morris,  13  Wend.  325,  337;  Brouwer  v.  Ap- 
pleby, 1  Sandf.  158,  1847;  People  v.  President,  9  Wend.  351;  Wood  v.  Bank, 

9  Cow.  194,  205,  1828;  Proprietors,  &c.  v.  Horton,  6  Hill,  501;  Gorham  v. 
Springfield,  21  Maine,  58,  1842;  People  v.  Stout,  23  Barb.  349, 1856;  Bristol 
v.  New  Chester,  3  N.  H.  523,  532,  1826;  State  v.  Canterbury,  8  Fost.  218. 
Acceptance,  when  requisite,  may,  doubtless,  be  implied,  in  proper  cases,  as 
where  no  particular  mode  of  expressing  acceptance  is  prescribed,  from  cor- 
porate acts  and  conduct,  as  in  cases  of  private  corporations.  Taylor  v.  New- 
berne,  2  Jones  Eq.  (N.  C.)  141,  1855.  See  Zabriskie  v.  Railroad  Co.,  23 
How.  (U.  S.)  381,  397,  1859. 

1  People  v.  Salomon,  51  111.  53, 1869 ;  Alcorn  v.  Horner,  38  Miss.  652,  1860 ; 
Patterson  v.  Society,  &c,  4  Zabr.  (N.  J.)  385,  1854 ;  Smiths.  McCarthy,  56  Pa. 
St.  359 ;  County  v.  Quarter  Sessions,  8  Barr.  395 ;  Commonwealth  v.  Painter, 

10  1  o.  214 ;  and  see  also  Bull  v.  Read,  13  Gratt.  (Va.)  78,  1853 ;  Peoples.  Rey- 
nolds, 5  Gilm.  (111.)  1;  States.  Scott,  17  Mo.  521;  Hudson  Co.  v.  State,  \ 
Zabr.  718;  Bank  v.  Brown,  26  N.  Y.  467,  1863.  This  case  asserts  a  distinc- 
tion between  a  bill  submitted  to  the  people  of  the  whole  state  for  adoption 
or  rejection,  and  an  act  which  leaves  it  to  the  inhabitants  of  a  particular 
locality  whether  they  will  avail  themselves  of  its  provisions.  It  has  been 
held  in  New  Hampshire  that  it  was  competent  for  the  legislature,  under 
the  constitution  of  the  state,  to  enact  a  penal  law  which  shall  have  effect 
only  in  those  towns  which  adopt  it  by  vote.  State  v.  Noyes,  10  Fost.  279, 
1855.  An  amendment  to  a  city  charter  was  to  take  effect  only  when 
adopted  "by  a  majority  of  the  voters  of  the  city."  This  was  considered  to 
manifest  the  intention  to  present  the  question  of  acceptance  to  the  voters 
at  a  regular  city  election.  The  council  ordered  the  vote  to  be  taken  at  the 
township  polls;  the  voters  of  the  two  organizations  possessing  different 
qualifications,  but  the  township  and  city  occupied  precisely  the  same  terri- 
tory: Held,  that  the  election  was  of  no  validity,  and  that  the  amendment 
had  never  been  duly  accepted.     Foote  v.  Cincinnati,  11  Ohio,  408,  1842. 

A  useful  article  upon  the  Constitutionality  of  Local  Option  Lares  will 
be  found  in  12  Am.  Law  Reg.  (N.  S.).  March,  1873,  p.  129.  Affirming  the 
principle  that  municipal  or  public  corporations  or  the  people  thereof  may 
by  the  legislature  be  invested  with  the  power  to  regulate  or  prohibit  the 


Ch.  III.]       CREATION     OF     PUBLIC     CORPORATIONS.  .  129 

the  constituent  act  of  a  municipal  corporation,  by  which 
the  right  to  make  certain  improvements  or  to  create  certain 
iabilities  is  made  to  depend  upon  a  vote  of  the  people  in- 
terested, has  frequently  been  upheld  as  valid.1  So  an  act 
directing  an  election  to  be  held  by  the  qualified  electors  in- 
terested to  determine,  by  ballot,  whether  a  newly-erected 
township  should  be  continued,  is  constitutional.2  On  the 
same  principle  the  legislature  may  provide  that  a  statute 

retail  of  intoxicating  drinks,  the  supreme  court  of  New  Jersey  have  recently 
decided  the  Chatham  Local  Option  Law,  which  declared  the  retail  of  ardent 
spirits  without  license  to  be  unlawful,  and.  which  provided  that  no  license 
phould  be  granted  if  a  majority  of  the  voters  of  a  township  voted  "  no 
license,"  to  be  constitutional.  State  v.  Morris  Common  Pleas,  12  Am.  Law 
Reg.  (N.  S.)  32.  See  also,  in  Pennsylvania,  the  very  r»cent  case  of  the 
Coniw.  v.  Locke,  et  al.  City  Commissoners,  not  yet  reported,  which  involved 
the  question  of  the  validity  of  the  act  of  May,  1871,  "to  allow  the  voters  of 
the  22d  "Ward  of  Philadelphia  to  vote  on  the  question  of  granting  licenses 
to  sell  intoxicating  liquors." 

1  Clarke  v.  Rochester,  28  N.  Y.  605 ;  Bank  of  Rome  v.  Rome,  18  N.  Y.  38; 
Trustees  v.  Cherry,  8  Ohio  St.  564;  Burnes  v.  Achison,  2  Kansas,  454,  1864  ; 
Bank  v.  Brown,  26  N.  Y.  467;  Hammond  v.  Haines,  25  Md.  541 ;  Railroad 
Co.  v.  Commissioners,  1  Ohio  St.  77;  Foote  v.  Cincinnati.  11  Ohio,  408, 
1842;  St.  Louis  v.  Alexander,  23  Mo.  483;  Blanding  v.  Burr,  13  Cal.  343. 
These  cases  are  distinguishable  from  Barto  v.  Himrod,  4  Seld.  483. 

2  Commonwealth  v.  Judges,  &c,  8  Pa.  St.  391;  distinguished  from  Par- 
ker v.  Commonwealth,  6  lb.  507;  Commonwealth  v.  Painter,  10  Pa.  St.  214, 
1849;  Smith®.  McCarthy,  56  Pa.  St.  359.  Where  the  authority  to  act  de- 
pends upon  the  prior  sanction  of  "a  majority  of  the  qualified  voters  "  resid- 
ing in  the  corporation,  the  presumption  is,  that  all  who  vote  are  legal  voters; 
and  the  better  view  probably  is,  that  those  who  do  not  vote  acquiesce  in 
the  result,  and  that  a  majority  of  those  actually  voting  is  sufficient,  though 
in  point  of  fact,  it  may  not  be  a  majority  of  all  who  would  be  entitled  to 
vote.  State  v.  Binder,  38  Mo.  450,  1866;  State  v.  Mayor.  &c.  37  Mo.  270. 
And  of  this  opinion  is  the  Supreme  Court  of  the  United  States,  in  which, 
in  an  action  on  municipal  bonds,  the  phrase  "  a  majority  of  the  legal  voters 
of  the  township  "  was  held  to  mean  a  majority  of  the  legal  voters  of  the 
township  voting  at  the  election.  St.  Joseph  Township  v.  Rogers,  Dec. 
Term,  1872;  People®.  Warfield.  20  111.  163;  People  v.  Weant,  48  HI.  263; 
Railroad  v.  Davidson  County,  1  Sneed  (Tenn.)  692;  Talbot  v.  Dent,  9 
B.  Mon.  526;  Angell  &  Ames  Corp.  9  ed.  sees.  499,  500.  But  com- 
pare State  v.  "Winkelmeier,  35  Mo.  103,  which  construes  such  language 
to  require  a  "majority  of  all  the  legal  voters  of  the  city,  and  not 
merely  of  all  who  might,  at  a  particular  time,  choose  to  vote  upon  it."  See 
Damon  v.  Granby,  2  Pick.  345,  355,  1824,  and  chapter  on  Corporate  Meet- 
ings, post     Infra,  sec.  25,  note. 

9 


130  MUNICIPAL    CORPORATIONS.  [Ch.  HI. 

shall  cease  to  exist  unless  the  municipal  corporation  to  be 
affected  by  it  shall,  within  a  prescribed  period,  assent  to  it. 

Special  Constitutional  Provisions. 

§  24.  The  constitutions  of  many  of  the  states  contain 
provisions  respecting  the  creation  and  powers  of  municipal 
corporations.  In  some  of  the  constitutions  the  legislature 
is  in  terms  allowed  to  create  corporations  for  municipal 
purposes  by  special  act,3  and,  in  others,  it  is,  in  terms,  for- 
bidden to  do  this,  and  required  to  provide  a  general  law  for 
all  corporations,  public  and  private.8    So  far  as  municipal 

i  Corning  v.  Greene,  23  Barb.  33,  1856. 

2  Post,  Chap.  IY.  New  York  constitution,  1846,  art.  VIII.  sec.  1 ; 
Illinois  constitution,  1847,  art.  X.  sec.  1;  see,  also,  new  constitution,  1870; 
Michigan  constitution,  1850,  art.  XV.  sec.  1;  California  constitution,  1849, 
art.  IV.  sec.  31;  construed,  Railroad  Co.  v.  Plumas  Co.,  37  Cal.  354;  Minne- 
sota constitution,  1857,  art.  X.  sec.  2;  Tierney  v.  Dodge,  10  Minn.  171;  12 
76.41;  Oregon  constitution,  1857,  art.  XI.  sec.  2;  Louisiana  constitution, 
1864.  title  VII.  art.  CXXI. ;  Nevada  constitution,  1864,  art.  VIII.  sec.  1 ; 
construed,  Virginia  City  v.  Mining  Co.,  2  Xev.  86.  In  Missouri  it  is  pro- 
vided that  no  municipal  corporation  shall  be  created  by  special  act,  except 
cities  of  at  least  5,000  inhabitants,  the  special  act  to  be  approved  by  a  vote 
of  the  inhabitants.     Constitution  1865,  art.  VIII.  sec.  5. 

*  Iowa  constitution,  1857,  art.  III.  sec.  30;  Von  Phul  v.  Hammer,  29 
Iowa,  222:  Florida  constitution,  1865,  art.  IV.  sec.  20;  Nebraska  constitu- 
tion, art.  VIII.  sees.  1  and  2.  By  the  new  constitution  of  Illinois,  special 
legislation  is  forbidden  "  incorporating  cities,  towns,  or  villages,  or  chang- 
ing or  amending  the  charter  of  any  town,  city,  or  village."  Kansas  con- 
stitution, art.  XTI.  sees.  1  and  5 ;  construed,  Wyandotte  City  v.  Wood,  5 
Kansas,  603;  Achison  ».  Barlow,  4  lb.  124.  The  constitution  of  Ohio  is  as 
follows:  "The  general  assembly  shall  provide  for  the  organization  of  cities 
and  incorporated  villages  by  general  laics,  and  restrict  their  power  of  taxa- 
tion, assessment,  borrowing  money,  contracting  debts,  and  loaning  their 
credit,  so  as  to  prevent  the  abuse  of  such  power."  Constitution  A.  D. 
1851,  art.  XIII.  sec.  6.  Under  this  section  the  legislature,  by  the  Towns' 
and  Cities'  Act  of  May  3,  1852  (Swan  &  Critchf.  Stats.  1497),  undertook  to 
provide  for  the  government  of  all  such  places  by  a  general  statute.  Thomas 
v.  Ashland,  12  Ohio  St.  124.  An  act  applying  to  all  cities  of  the  first  class 
containing  less  than  one  hundred  thousand  inhabitants,  is  not  in  conflict 
with  the  provision  of  the  constitution  which  requires  all  laws  of  a  general 
nature  to  have  a  uniform  operation  throughout  the  state.  Welkerc.  Potter, 
18  Ohio  St.  85,  1868 ;  see  also  Lafayette  v.  Jenners,  10  Ind.  70,  80,  1857. 
Construction  of  constitutional  provision  that  there  shall  be  "  but  one  sys- 


Ch.  III.]        CREATION     OF     PUBLIC     CORPORATIONS.  131 

corporations  and  their  rights  are  protected  by  constitutional 
provisions,  express  or  implied,  they  are  removed  from  legis- 
lative control,  but  no  further,  as  we  shall  see  in  a  subse- 
quent chapter.  Although  the  constitution  of  a  state  may 
recognize  the  municipal  corporation  of  an  important  city  by 
fixing  the  number  of  certain  officers,  and  providing  for  their 
election,  &c,  yet  this  does  not  make  the  charter  of  the  city 
a  constitutional  charter  conferring  powers  beyond  the  con- 
trol of  the  legislature.1 

§  24a.     The  constitution  of  Kansas,  as  well  of  Ohio,  in 
the  article  entitled  "Corporations,"    contains  a  provision 

tern  of  town  and  county  government,"  which  "  shall  be  as  nearly  uniform  as 
practicable."  State  v.  Dousman,  28  Wis.  541,  1871;  State©.  Riordan,  24 
Wis.  484,  1869. 

1  Baltimore  v.  Board  of  Police,  15  Md.  376,  1859;  see  also  Paterson  v. 
Society,  &c.  4  Zabr.  (N.  J.)  385,  1854.  In  People  v.  Draper,  15  N.  Y.  561, 
Brown,  J.,  says:  "When  the  present  constitution  was  formed,  the  entire 
territory  of  the  state  was  separated,  and  appropriated  by  its  civil  divisions, 
its  counties,  cities,  and  towns.  These  civil  divisions  are  coeval  with  the 
government.  The  state  has  never  existed  a  moment  without  them.  All 
our  thoughts  and  notions  of  civil  government  are  inseparably  associated 
with  counties,  cities,  and  towns.  They  are  permanent  elements  in  the 
frame  of  government;  they  are  institutions  of  the  state,  durable  and  inde- 
structible by  any  power  less  than  that  which  gave  being  to  the  organic  law. 
They  are,  however,  subject  to  control  and  regulation  by  the  legislature.  It 
may  enlarge  or  circumscribe  their  territorial  limits,  increase  or  diminish 
their  numbers,  separate  them  into  parts,  and  annex  some  of  the  parts  to 
parts  of  others;  but  they  must  still  assume  the  form  and  be  known  and 
governed  only  as  counties,  cities,  or  towns.  The  state  at  large  is,  and  ever 
has  been,  an  aggregate  of  these  local  bodies."  To  same  effect,  in  same 
case,  lb.  541,  per  Denio,  C.  J.  See  also  People  v.  Morrell,  21  Wend.  563 
(division  of  counties) ;  ante,  pp.  81-91.  In  People  v.  Hurlburt,  decided  by 
the  Supreme  Court  of  Michigan,  in  1871,  24  Mich.  44,  this  subject  is  largely 
and  learnedly  examined  by  Mr.  Justice  Cooley,  who,  conceding  to  the  state 
full  authority  to  shape  and  control  municipal  organizations  at  its  will, 
nevertheless  maintained  that  there  were,  in  the  constitution  of  that  state, 
both  express  and  implied  restrictions  upon  the  legislative  dominion  over 
municipal  institutions,  and  that  local  governments  and  the  right  of  the 
people  to  them  were  secured  by  the  constitution,  and  did  not  exist  by  the 
favor  and  at  the  mere  pleasure  of  the  legislature.  And  in  the  same  case 
the  court  decided,  under  a  special  provision  of  the  constitution  of  the  state. 
elsewhere  noticed,  that  the  legislature  could  not  appoint,  for  a  city  corpo- 
ration, otlicers  whose  duties  were  purely  local  and  strictly  municipal.  The 
discussions  by  all  of  the  judges  are  unusually  interesting.    A»te,  p.  84,  etseg. 


132  MUNICIPAL     CORPORATIONS.  [Ch.  IU. 

that  "the  legislature  shall  pass  no  special  act  conferring 
corporate  power •«$,'"  and  the  Supreme  Courts  of  those  states 
have  decided  that  the  provision  applied  to  municipal  as 
well  as  private  corporations  ; a  and  that  the  effect  was  to 
compel  the  legislatures  of  those  states  to  regulate  the  grant 
of  powers  to  municipal  corporations  by  general  laws. 
Hence  an  act  specially  amending  the  charter  of  a  city  in 
respect  to  making  local  improvements  or  assessments,'  or 
specially  extending  the  limits  of  a  particular  city,4  is  uncon- 
stitutional. And  so  it  seems  is  an  act  which  authorizes  a 
city  by  name  to  issue  its  scrip  for  a  particular  purpose, 
and  to  levy  taxes  to  pay  it  in  aid  of  a  single  enterprise— 
the  court  inclining  to  hold  such  an  enactment  to  be  a 

1  Constitution  of  Kansas,  art.  XII.  Sees.  1  and  2  of  art.  XIII.  of  the 
constitution  of  Ohio  is  the  same  as  sec.  1,  art.  XII.  of  the  constitution  of 
Kansas.  Sec.  6,  art.  XIII.  of  the  Ohio  constitution  is  the  same  as  sec.  5, 
art.  XII.  of  the  Kansas  constitution.  There  is  a  similar  constitutional  pro- 
vision in  Nebrasha,  and  perhaps  in  other  states.    Supra,  sec.  24. 

2  Atchison  v.  Bartholew,  4  Kansas,  124, 1866 ;  Wyandotte  City  v.  Wood, 
5  Kansas,  603,  1870;  The  State  v.  Cincinnati,  20  Ohio  St.  18,  1870;  fol- 
lowing Atkinson  v.  Railroad  Co.,  15  Ohio  St.  21,  1864. 

3  Atchison  v.  Bartholew,  supra. 

4  Wyandotte  v.  Wood,  supra;  State  v.  Cincinnati,  supra.  In  the  case 
last  cited,  the  Supreme  Court  of  Ohio,  under  the  constitutional  provision 
quoted  in  the  text,  held  that  the  legislature  cannot  by  special  act  create  a 
corporation;  nor  by  special  act  confer  additional  powers  on  a  corporation 
already  existing,  and  that  in  these  respects  there  was  no  difference  between 
private  and  municipal  corporations,  since  the  constitution  equally  embraced 
and  equally  applies  to  both  classes;  and  therefore  the  act  of  April  16,  1870, 
"to  prescribe  the  corporate  limits  of  Cincinnati,"  being  considered  a 
special  act,  was  adjudged  void.  See  also  Atkinson  v.  Railroad  Company, 
supra.  In  this  case,  Ranney,  J.,  thus  expounds  the  constitution:  "These 
provisions  of  the  constitution  are  too  explicit  to  admit  of  the  least  doubt 
that  they  were  intended  to  disable  the  General  Assembly  from  either  creat- 
ing corporations,  or  conferring  upon  them  corporate  powers,  by  special  acts 
of  legislation.  It  was  intended  to  correct  an  existing  evil,  and  to  inaugu- 
rate the  policy  of  placing  all  corporations  of  the  same  kind  upon  a  perfect 
equality  as  to  all  future  grants  of  power ;  of  making  such  law  applicable  to 
all  parts  of  the  State,  and  thereby  securing  the  vigilance  and  attention  of 
its  whole  representation;  and  finally,  of  making  all  judicial  construction  of 
their  powers,  or  the  restrictions  imposed  upon  them,  equally  applicable  to 
all  corporations  of  the  same  class.  We  must  give  such  a  construction  to 
the  constitution  as  will  preserve  its  leading  objects  intact.1'    Supra,  sec.  20. 


tu.  III.]        CREATION     OF   PJBLIC     CORPORATIONS.  133 

special  act,  and  one  which  undertook  to  confer  corporate 
powers.1 

§  25.  A  constitutional  provision  that  two-thirds  of  the 
general  assembly  "shall  be  requisite  to  every  bill  creating, 
continuing,  altering,  or  renewing  any  body  politic  or  corpo- 
rate" Was  held  by  a  majority  of  the  court  of  errors,  revers- 
ing the  majority  view  of  the  supreme  court  in  the  same  case, 
to  extend  to  public  and  municipal,  as  well  as  private,  cor- 
porations.' 

1  Commercial  National  Bank  v.  City  of  Iola,  U.  S.  Cir.  Court,  June, 
1873,  reported  in  2  Dillon  Cir.  C.  R.  In  this  case  the  Circuit  Judge,  de- 
livering the  opinion  of  the  court,  and  referring  to  the  opinion  of  Ranney, 
J.,  quoted  in  the  lasi  note,  observed:  "  One  of  the  objects  of  the  constitu- 
tional provision  in  Kansas,  as  well  as  in  Ohio,  was  to  cut  up  by  the  roots 
the  mischief  of  special  legislation,  particularly  in  respect  to  corporations, 
both  public  and  private.  This  object  would  be  defeated  if  the  special  act 
relating  to  the  city  of  Iola  could  stand.  If  under  the  doctrine  of  Butz  v. 
Muscatine,  8  Wall.  575,  this  court  is  not  absolutely  bound,  in  this  class  of 
cases,  to  follow  the  interpretation  of  the  State  constitution  given  by  its 
highest  court,  yet  it  seems  that  it  ought  to  follow  it  where  it  appears  to 
rest  upon  solid  grounds,  and  was  made  in  cases  and  in  respect  to  questions 
where  there  was  nothing  to  warp  the  judgment  of  its  judges,and  where  the 
interpretation  was  settled  or  had  been  declared  at  the  time  the  act  in  con- 
troversy was  passed.  In  the  latest  case  on  this  subject,  decided  by  the 
Supreme  Court  of  the  United  States,  it  is  not  denied  that  the  Supreme 
Court  of  a  State  is  the  appointed  expositor  of  its  constitution  and  laws 
and  that  the  Federal  courts  will  adopt  as  rules  for  their  own  judgments 
the  decisions  of  the  highest  courts  of  the  State  "respecting  local  questions 
peculiar  to  itself,  or  respecting  the  construction  of  its  own  constitution  and 
laws."  It  only  denies  the  binding  force  of  State  adjudications  which  rest 
upon  the  general  principles  of  law,  and  not  upon  the  meaning  of  special 
constitutional  or  legislative  provisions.  Olcutt  v.  Supervisors,  U.  S.  Su- 
preme Court,  Dec.  Term,  1872.  I  think  the  present  case  is  one  in  which  it 
is  the  duty  of  this  court  to  follow  the  decisions  of  the  State  Supreme  Court; 
and  so  far  as  my  judgment  rests  upon  the  special  provisions  of  the  constitu- 
tion above  referred  to,  I  place  it  upon  the  State  adjudications  without  an 
inquiry  into  their  soundness." 

The  bonds  in  this  case  were  held  invalid  mainly  on  the  ground  that 
they  were  not  issued  for  a  public  purpose.  Post,  sec.  105  J;  also  chap. 
XIV.  on  Contracts. 

3  Purdy  v.  People,  4  Hill  (N.  Y.)  384,  1842;  reversing  2  Hill,  31. 
What  is  an  alteration  within  this  provision:  Corning  v.  Green,  23  Barb.  33; 
Smith  v.  Helmer,  7  Barb.  416;  Morris  v.  People,  3  Denio,  381.  Where  a 
constitution  requires  that  acts  of  incorporation  shall  have   "the  assent  of 


!34  MUNICIPAL     CORPORATIONS.  [Ch.  ILl 

§  26.  Under  a  constitution  which  provides  that  ''in  all 
cases  where  a  general  law  can  be  made  applicable,  no 
special  law  shall  be  enacted,"  the  better  view  is,  that  it  is 
for  the  legislature  to  determine  whether  their  purpose  can 
or  cannot  be  expediently  effected  by  a  general  law,  and  a 
special  act,  as,  for  example,  one  providing  for  the  location 
of  the  county  seat  of  a  specified  county,  will  not  be  held 
invalid  by  the  courts.1 

§  27.  The  constitutions  of  several  of  the  states  contain, 
substantially,  this  provision,  derived  from  the  constitution 
of  New  York :  "It  shall  be  the  duty  of  the  legislature  to 
provide  for  the  organization  of  cities  and  incorporated  vil- 
lages, and  to  restrict  their  pozoer  of  taxation,  assessment, 
borrowing  money,  contracting  debts,  and  loaning  their 
credit,  so  as  to  prevent  abuses  in  assessments,  and  in  con- 
tracting debts  by  such  municipal  corporations."2  This 
obviously  enjoins  upon  the  legislature  the  duty  of  providing 
suitable  and  proper  restrictions  upon  the  enumerated 
powers,  but  in  what  these  restrictions  shall  consist,  and  how 
they  shall  be  imposed,  are  subjects  left  to  the  discretion  or 
sense  of  duty  of  the  legislative  department,  with  the  exer- 
cise of  which  the  courts  cannot  interfere.3    The  Supreme 

at  least  two-thirds  of  each  house,"  the  word  house  means  the  members 
present  doing  business — these  being  a  quorum — and  not  a  majority  of  all 
the  members  elected.     Southworth  v.  Railroad  Co.,  2  Mich.  287. 

:  State  v.  Johnson,  1  Kansas,  178,  1862;  contra,  ex  parte  Pritz,  9  Iowa, 
30,  1859,  where  a  special  act  amending  the  charter  of  a  city  was  held  in- 
valid because  all  such  laws  were,  by  the  constitution  of  the  state,  required 
to  be,  and  could  be,  made  general.  Von  Phul  v.  Hammer,  29  Iowa,  222. 
It  is  for  the  legislature,  and  not  the  courts,  to  determine  when  a  general 
law  can  be  made  applicable.  Gentile  v.  State.  29  Ind.  409,  overruling 
Thomas  v.  Board  of  Commissioners,  5  Ind.  4;  Longworth's  Executors  «. 
Evansville,  32  Ind.  322;  Cooley  Const.  Lira.  129,  note;  State  v.  County 
Court,  50  Mo.  317,  1872;  Murdock  i:  Woodson,  2  Dillon  C.  C.  1873. 

■  New  York  constitution  1846,  art.  VIII.  sec.  9 ;  "Wisconsin  constitution 
1848,  art.  XI.  sec.  3;  Michigan  constitution  1859,  art.  XJI.  sec.  13;  Oregon 
constitution  1857.  art.  XL  sec.  5;  Kansas  constitution  1859,  art.  XII.  sec. 
5;  see  Paine  v.  Spratley,  5  Kansas.  525;  Nevada  constitution  1864,  art. 
VIII.  sec.  8 ;  Nebraska  constitution,  art.  VIII.  sec.  4 ;  California  constitu- 
tion 1849,  sec.  37;  Ohio  constitution  1851,  art.  XIII.  sec.  6.  See,  also, 
chapters  relating  to  Contracts  and  Taxation,  post. 

8  The  failure  of  the  legislature  to  perform  the  duty  relative  to  restrict- 


Ch  HI.]      .  CREATION     OF     PUBLIC     CORPORATIONS.  135 

Court  of  Wisconsin,  in  the  case  cited  in  the  note,  holds,  to 
some  extent,  a  contrary  view,  but  its  judgment  was,  in 
effect,  although  not  in  terms,  overruled  by  the  Supreme 
Court  of  the  United  States,  and  in  its  full  extent  is  not  in 
accord  with  the  view  elsewhere  taken  in  the  state  courts.1 

§  28.  Many  of  the  state  constitutions  contain,  in  sub- 
stance, a  provision  that  no  legislative  act  shall  embrace 
more  than  one  object,  to  be  expressed  in  its  title.  This 
provision  has  been  frequently  construed  to  require  only  the 
general  or  ultimate  object  to  be  stated  in  the  title,  and  not 
the  details  by  which  the  object  is  to  be  attained.     Any  pro- 

ing  the  power  of  taxation,  &c,  eojoined  by  the  constitutional  provision 
above  cited,  "may,"  says  Ranney,  J., in  Hill  v.  Higdon,  5  Ohio  St.  248,  "be 
of  very  serious  import,  but  lays  no  foundation  for  judicial  correction."  See 
Maloy  v.  Marietta,  11  Ohio  St.  636,  638,  where  this  view  is  left  open,  but 
holding  that  the  legislature  alone  has  the  power  to  determine  the  mode  and 
measure  of  the  restriction  to  be  imposed.  It  was  also  left  open  in  the 
People  v.  Mahaney,  13  Mich.  481,  but  this  case  illustrates  what  is  a  suffi- 
cient restriction  on  the  power  of  taxation  to  meet  the  constitutional  require- 
ment. See  also  Cooley  Const.  Lim.  518;  Railroad  Co.  v.  Connelly,  10  Ohio 
St.  165.  To  the  effect  that  the  constitutional  provision  quoted  in  the  text 
does  not  take  away,  but  recognizes,  the  discretion  of  the  legislature  in  con- 
ferring powers  of  the  enumerated  character  upon  municipal  corporations, 
and  that  such  discretion  is  not  reviewable  by  the  courts,  see  Bank  of 
Rome  v.  Rome,  18  N.  Y.  38,  1858;  Benson  v.  Mayor,  &c.  of  Albany,  24 
Barb.  248,  1857;  Clarke  v.  Rochester,  lb.  446;  Grant  v.  Courter,  lb.  232. 

2  Foster  v.  Kenosha,  12  Wis.  616,  1860.  The  legislature  cannot,  con- 
sistently with  this  restriction,  confer  upon  a  municipal  corporation  an  un- 
limited power  to  levy  taxes  and  raise  money  for  extra-municipal  purposes, 
such  as  aiding  railroad  companies,  and  an  amendment  to  the  charter  of  a 
city  authorizing  its  council  ' '  to  levy  and  collect  special  taxes  for  any  pur- 
pose (aside  from  what  may  be  specially  provided  for  in  the  city  charter), 
which  may  be  considered  essential  to  promote  or  secure  the  common  inter- 
ests of  the  city,  or  borrow,  on  the  corporate  credit  of  the  city,  any  sum  of 
money  at  a  rate  of  interest  not  exceeding  ten  per  cent."  on  obtaining  the 
previous  sanction  of  a  majority  of  the  voters  of  the  city,  is  void,  and  the 
requirement  of  the  sanction  of  the  voters  is  not  a  restriction  on  the  power 
to  levy  taxes  or  contract  debts,  within  the  meaning  of  the  constitution,  the 
court  being  of  opinion  that  the  duty  of  imposing  the  limitation  rests  on  the 
legislature.  lb.  But  see  Campbell  v.  Kenosha,  5  Wall.  194,  1866 ;  City  v. 
Lamson,  9  Wall.  477,  1869 ;  and  the  authorities  cited  in  the  last  note.  See 
Rogan  v.  Watertown,  30  Wis.  259,  1872,  as  to  loaning  credit. 

Other  restrictions  upon  the  power  to  contract  debts :  see  chapters  on 
Charters  and  Contracts,  post. 


|36  MUNICIPAL     CORPORATIONS.  [Ch.  Hi. 

vision  calculated  to  carry  the  declared  object  into  effect  is 
unobjectionable,  although  not  specially  indicated  in  the 
title.  Thus,  where  a  constitution  provides  that  no  bill  or 
act  shall  pass  containing  any  matter  different  from  what  is 
expressed  in  the  title  thereof,  an  act,  the  title  of  which 
declares  it  to  be  for  the  better  regulation  of  a  certain  town 
(naming  it),  or  to  amend  or  enlarge  the  powers  of  the  cor- 
poration thereof,  is  suffiient,  without  enumerating  the  par- 
ticulars in  which  the  powers  are  eularged  or  extended.1  So 
a  provision  in  an  act  entitled  merely,  "  An  act  to  amend  the 
act  incorporating  the  city  of  M.,"  extending  the  city  limits, 
does  not  conflict  with  the  constitutional  requirement  that 
"every  law  shall  embrace  but  one  object,  which  shall  be 
expressed  in  its  title."2 

1  Green  v  Mayor,  R.  M.  Charlt.  (Geo.)  368,  1832,  per  Law,  J. ;  Mayor  v. 
State,  4  Geo.  26 ;  Hill  v.  Decatur,  22  Geo.  203. 

2  Morford  v.  Unger,  8  Iowa,  82,  1859;  Davis  ».  Woolnough  (act  estab- 
lishing city  court),  9  lb.  104.  S.  P.  St.  Paul  v.  Coulter,  12  Minn.  41,  50, 
1866.  In  determining  whether  a  law  be  in  conflict  with  the  provision  of 
the  constitution,  the  unity  of  the  object  is  to  be  looked  for  in  the  ultimate 
end  to  be  attained,  and  not  in  the  details  leading  to  that  end.  State,  &c. 
v.  Co.  Judge,  2  Iowa,  280  ;  People  v.  Mahaney,  13  Mich.  481,  1865;  People 
v.  Hurlburt,  24  Mich.  44,  1871.  Construction  of  similar  constitutional  pro- 
vision :  Armault  v.  New  Orleans,  11  La.  An.  54;  Kathman  v.  New  Orleans, 
II.  145 ;  People  v.  Mellen,  32  111.  181 ;  Railroad  Co.  v.  Gregory,  15  111.  21 ; 
Davis  v.  State  (inspection  act  for  Baltimore),  7  Md.  151;  Annapolis  v.  State, 
30  Md.  212 ;  Lafou  v.  Dufrocq,  6  La.  An.  350 ;  Ottawa  v.  People,  48  111.  233, 
1868;  Miles  v.  Charleton,  29  Wis.  400,  1872;  Murdock  v.  Woodson,  2  Dil- 
lon C.  C.  R.  1873;  Hubert  v.  People,  49  N.  Y.  132,  1872. 


Ch.  IV.l  EXTENT     OF    LEGISLATIVE  CONTROL.  137 


CHAPTER  IV. 

Public    and    Private   Corporations    Distinguished- 
Legislative  Authority  and  its  Limitations. 

§  29.     A  fundamental  division  of  corporations  hereto- 
fore adverted  to,  is  into  public  and  private.1    The  import  - 

1  Ante,  chapter  II.  In  Milne  v.  Williams,  11  Ire.  (Nor.  Car.)  Law,  558, 
1854,  Pearson,  J.,  commenting  on  the  common  divisions  of  corporations, 
says:  "The  purpose  in  making  all  corporations  is  the  accomplishment  of 
some  public  good.  Hence,  the  division  into  public  and  private  has  a  ten- 
dency to  confuse  and  lead  to  error  in  investigation ;  for,  unless  the  public 
are  to  be  benefited,  it  is  no  more  lawful  to  confer  '  exclusive  rights  and 
privileges '  upon  an  artificial  body,  than  upon  a  private  citizen.  The  sub- 
stantial distinction  is  this:  Some  corporations  are  created  by  the  mere  will 
of  the  legislature,  there  being  no  other  party  interested  or  concerned.  To  this 
body  a  portion  of  the  power  of  the  legislature  is  delegated,  to  be  exercised 
for  the  public  good,  and  subject  at  all  times  to  be  modified,  changed,  or  an- 
nulled. Other  corporations  are  the  result  of  contract.  The  legislature  is 
not  the  only  party  interested;  for,  although  it  has  a  public  purpose  to  be 
accomplished,  it  chooses  to  do  it  by  the  instrumentality  of  a  second  party. 
These  two  make  a  contract.  The  expectation  of  benefit  to  the  public  is  the 
moving  consideration  on  one  side ;  that  of  expected  remuneration  for  the 
outlay  is  the  consideration  on  the  other.  It  is  a  contract,  and,  therefore, 
cannot  be  modified,  changed,  or  annulled  without  the  consent  of  both  par- 
ties. Counties  are  an  instance  of  the  former,  railroad  and  turnpike  com- 
panies of  the  latter,  class  of  corporations."  This  recognizes  the  substantial 
difference  between  the  two  classes  of  corporations,  and  is,  in  effect,  a  criti- 
cism upon  the  names  by  which  they  are  distinguished. 

According  to  the  view  of  the  supreme  court  of  California,  corporations 
should  be  divided  into  three  classes,  to  wit:  Public  municipal  corporations, 
the  object  of  which  is  to  promote  the  public  interest ;  corporations  tech- 
nically private,  but  of  a  quasi  public  character,  having  in  view  some  public 
enterprise  in  which  the  public  interests  are  involved,  such  as  railroad,  turn- 
pike, and  canal  companies;  and  corporations  strictly  private.  Miner's 
Ditch  Company  v.  Zellerbach,  37  Cal.  543,  1869.  The  opinion  of  Sawyer,  C. 
J.,  in  this  case,  is  able  and  instructive.  The  author  prefers  the  ordinary 
division  of  corporations  into  public  (which  includes  municipal)  and  private. 
See  Foster  v.  Fowler,  60  Pa.  St.  27,  1868,  in  which  a  company  created  to 
supply  a  city  with  water  was  held  to  be  a  public,  as  distinguished  from  a 
private  corporation. 


1;.}8  MUNICIPAL     CORPORATIONS.  [Ch.  IV. 

ance  of  this  distinction  cannot  be  too  much  emphasized, 
since  upon  it  are  based  the  legal  principles  which  so  broadly 
distinguish  the  two  classes  of  corporations.  With  private 
corporations  the  present  work  has  no  other  concern  than  to 
point  out  wherein  they  differ  from  those  which  are  public. 
Both  classes  are  alike  created  by  the  legislature,  and  in  the 
same  way — by  special  charter  or  under  general  incorpora- 
tion acts.  Private  corporations  are  created  for  private,  as 
distinguished  from  purely  public  purposes,  and  they  are 
not,  in  contemplation  of  law,  public  because  it  may  have 
been  supposed  by  the  legislature  that  their  establishment 
would  promote,  either  directly  or  consequentially,  the  pub- 
lic interest.  They  cannot  be  compelled  to  accept  a  charter 
or  incorporating  act.  The  assent  of  the  corporation  is 
necessary  to  make  the  incorporating  statute  operative.  But 
when  assented  to,  the  legislative  grant  is  irrevocable,  and  it 
cannot,  without  the  consent  of  the  corporation,  be  impaired 
or  destroyed  by  any  subsequent  act  of  legislation,  unless 
the  right  to  do  so  was  reserved  at  the  time.  The  celebrated 
Dartmouth  College  Case,  by  its  construction  of  the  federal 
constitution,  incorporated,  wisely  or  otherwise,  into  Ameri- 
can jurisprudence,  the  principle  which  has  been  attended 
with  such  important  practical  consequences,  namely,  that 
privileges  and  franchises  granted  by  legislative  act  to  a  pri- 
vate corporation,  when  accepted,  constitute  a  contract 
within  the  meaning  of  the  clause  of  the  constitution  which 
secures  the  inviolability  of  contracts  by  declaring  that  no 
state  shall  pass  any  law  impairing  their  obligation ;  and 
hence  a  law  materially  altering  the  charter  of  such  a  corpo- 
ration is  unconstitutional,  unless  the  power  to  alter  it  was 
reserved  when  the  grant  was  made. 

§  30.  Public  corporations  are  called  into  being  at  the 
pleasure  of  the  state,  and  while  the  state  may,  it  need  not, 
obtain  the  consent  of  the  people  of  the  locality  to  be  affected. 
The  charter  or  incorporating  act  of  a  municipal  corporation 
is  in  no  sense  a  contract  between  the  state  and  the  corpora- 
tion, although,  as  we  shall  presently  see,  vested  rights  in 
favor  of  third  persons,  if  not,  indeed,  in  favor  of  the  corpo- 
ration, may  arise  under  it.  Public  corporations  within  the 
meaning  of  this  rule  are  such  as  are  established  for  public 


Ch.  IV.]  EXTENT     OF  LEGISLATIVE     CONTROL.  139 

purposes  exclusively — that  is,  for  purposes  connected  with 
the  administration  of  civil  or  local  government — and  corpo- 
rations are  public  only  when,  in  the  language  of  Chief 
Justice  Marshall,  "the  whole  interests  and  franchises  are 
the  exclusive  property  and  domain  of  the  government 
itself,"  such  as  quasi  corporations  (so  called),  counties  and 
towns  or  cities  upon  which  are  conferred  the  powers  of 
local  administration.  With  the  exception  of  certain  consti- 
tutional limitations  presently  to  be  noticed,  the  power  of 
the  legislature  over  such  corporations  is  supreme  and  tran- 
scendent :  it  may  erect,  change,  divide,  and  even  abolish 
them,  at  pleasure,  as  it  deems  the  public  good  to  require.1 

'Dartmouth   College    v.    Woodward,   4   Wheat.    518,    1819;    Allen   v 
JMcKean,  1  Sumner,  276,  1833  (the  Bowdoin  College  Case  elaborately  con 
sidered  by  Story,  J.);  People  v.  Morris,  13  Wend.  325,  1835.     In  this  east 
the  defendant  insisted  that  the  rights  and  privileges  conferred  upon  thf 
village  of  Ogdensburg  by  the  act  incorporating  it  were  vested  rights,  and 
could  not  be  impaired,  by  subsequent  legislation.      But,   said  Nelson,  J., 
with  his  usual  clearness:    "It  is  an  unsound  and  even  absurd  proposition 
that  political  power  conferred  by  the  legislature  can  become  a  vested  right 
as  against  the  government  in  any  individual  or  body  of  men."     S.  P.  Penob- 
scot Boom  Corporation  v.  Lawson,  16  Maine,  224 ;  Yarmouth  v.  North  Yar- 
mouth, 34  Maine,    411,  1852;    Story  Com.  Const,   sees.  1385,  1388;  North 
Yarmouth  v.  Skillings,  45  Maine,  133,  1858;  Girard  v.  Philadelphia,  7  Wall. 
1,  1868;  ante,  §9;    Jersey  City  v.   Railroad  Co.,    20  N.  J.  Eq.  360.     "A 
municipal  corporation,  in  which  is  vested  some  portion  of  the  administra- 
tion of  the  government,  may  be  changed  at  the  will  of  the  legislature. 
Such  is  a  public  corporation,  used  for  public  purposes."    Per  McLean,  J., 
in  State  Bank  v.  Knoop,  16  How.  U.  S.  369,  380,  1853.     "Public  or  muni- 
cipal corporations  are  established  for  the  local  government  of  towns  or  par- 
ticular districts.     The  special  powers  conferred  upon  them  are  not  vested 
rights  as  against  the  state,  but,  being  wholly  political,  exist  only  during  the 
will  of  the  general  legislature;  otherwise,  there  would  be  numberless  petty 
governments  existing  within  the  state  and  forming  part  of  it,  but  independ- 
ent of  the  control  of  the  sovereign  power.     Such  powers  may  at  any  time 
be  repealed  or  abrogated  by  the  legislature,  either  by  a  general  law  operat- 
ing upon  the  whole  state,  or  by  a  special   act  altering  the  powers  of  the 
corporation."    Sloan  v.  State  (implied  modification  of  charter  as  to  vending 
liquor  by  subsequent  general  law),  8  Blackf.  (Ind.)  361,  1847,  per  Smith,  J. ; 
approving  People  v.  Morris,  13  Wend.    325;   Armstrong  v.   Commissioners 
(as  to  removal  of  county  seat),  4  Blackf.  (Ind.)  208,  1836;  Post,  sec.  35. 

In  the  recent  case  of  the  United  States  v.  The  Baltimore  &  Ohio  Rail- 
road Company,  decided  by  the  United  States  Supreme  Court,  December 
Term,  1872,  in  which  it  was  held  that  the  general  government  could  not 
tax  the  income  or  property  of  the  City  of  Baltimore  under  the  Internal 


140  MUNICIPAL     CORPORATIONS.  [Ca.  IV, 

And  it  may  be  here  observed  that  the  extent  of  the  legisla- 
tive control  over  public  or  municipal  corporations  is  not 
impaired  by  the  circumstance  that  the  charter  is  granted  in 
the  same  act  that  creates  a  private  corporation,  whose  rights 
cannot  be  changed  without  their  consent.1     Where,  in  in- 

Revenue  Act  (Post,  sec.  615  a),  the  court  discuss  and  examine  the  nature  of 
municipal  corporations  and  the  relation  they  sustain  to  the  state,  of  which 
they  are  treated  as  arms  or  agencies.  The  court  say:  "  A  municipal  corpo- 
ration like  the  City  of  Baltimore  is  a  representative  not  only  of  the  state, 
but  is  a  portion  of  its  governmental  power.  It  is  one  of  its  creatures,  made 
for  a  specific  purpose,  to  exercise  within  a  limited  sphere  the  powers  of  the 
state.  The  state  may  withdraw  these  local  powers  of  government  at 
pleasure,  and  may,  through  its  legislature  or  other  appointed  channels, 
govern  the  local  territory  as  it  governs  the  state  at  large.  It  may  enlarge 
or  contract  its  powers  or  destroy  its  existence.  As  a  portion  of  the  state, 
in  the  exercise  of  a  limited  portion  of  the  powers  of  the  state,  its  revenues, 
like  those  of  the  state,  are  not  subject  to  taxation."  Post,  sees.  64,  614. 

As  to  extent  of  legislative  control,  and  the  distinction  between  jniblic  and 
private  corporations,  see,  also,  People  v.  Wren  (division  of  a  county),  4 
Scam.  (111.)  273 ;  Coles  v.  Madison  County,  Breese  (111.)  120 ;  Bush  v.  Ship- 
man,  4  Scam.  (111.)  190:  Holliday  v.  People,  5  Gilm.  (111.)  216;  Richland 
County  v.  Lawrence  County,  12  111.  8;  Trustees,  &c.  v.  Tatman,  13  111.  30; 
Gutzweller  v.  People,  14  111.  142;  State  v.  Mayor,  R.  M.  Charlt.  (Geo.)  250; 
State,  &c.  v.  St.  Louis  County  Court,  34  Mo.  546 ;  Purdy  v.  People,  4  Hill 
(N.  Y.)  385 ;  Morey  v.  Newfaue,  8  Barb.  645 ;  Lloyd  v.  Mayor,  &c.  of  New 
York,  5  N.  Y.  (1  Seld.)  369;  Lowler  v.  Same,  7  Abb.  Pr.  R.  248;  Green  v. 
Same,  5  lb.  503;  Aurora  v.  West,  9  Ind.  74;  Plymouth  v.  Jackson,  15  Pa. 
St.  44;  Louisville  v.  Commonwealth,  1  Duvall  (Ky.)  295;  O'Hara  v.  Port- 
land, 3  Oregon,  525;  Gray  v.  Brooklyn,  10  Abb.  (N.  Y.)  Pr.  Rep.  N.  S. 
186;  State  v.  Hundelhausen,  26  Wis.  432,  1870;  Tinsmau  v.  Railroad  Com- 
pany, 2  Dutch.  (N.  J.)  148 ;  Marietta  v.  Fearing,  4  Ohio,  427 ;  Richmond  v. 
Richmond,  &c.  R.  R.  Co.,  21  Gratt.  (Va.)  604,  1872;  State©.  Mayor,  &c. 
24  Ala.  701;  Governor  v.  McEwen,  5  Humph.  (Tenn.)  241;  Grogan  v.  San 
Francisco,  18  Cal.  590;  Darlington  v.  Mayor,  &c.  of  New  York,  31  N.  Y. 
164;  Savings  Fund  Society  v.  Philadelphia,  31  Pa.  St.  175,  185;  Philadel- 
phia v.  Field,  58  Pa.  St.  320;  Erie  v.  Canal  Company,  59  Pa.  St.  174; 
Dunsmore's  Appeal,  52  Pa.  St.  374;  Blanding  v.  Burr,  13  Cal.  343,  1859; 
People  v.  Hill,  7  Cal.  97,  1857;  Burns  v.  Clarion  County,  62  Pa.  St.  422, 
1869;  Durach's  Appeal,  lb.  491;  New  Orleans  v.  Hoyle,  23  La.  An.  740. 

This  subject  is  discussed  in  an  interesting  manner  by  Sharswood,  J.,  in 
his  learned  judgment,  in  Philadelphia  v.  Fox,  64  Pa.  St.  169,  1870.  The 
doctrine  is  here  laid  down  that  since  the  legislature  cannot  alienate  any 
part  of  its  legislative  power,  it  cannot  therefore  by  legislative  act  or  con- 
tract invest  any  municipal  corporation  with  an  irrevocable  franchise  of 
government  over  any  part  of  its  territory.     lb.  181 ;  Post,  sees.  37,  437. 

1  Patterson  v.  Society,  &c,  4  Zabr.  (N.  J.)  385,  1854.  See,  also,  Balti- 
more v.  Board  of  Police,  15  Md.  376,  1859. 


Ch.  IV.]  EXTENT     OF     LEGISLATIVE     CONTROL.       .  14] 

corporating  a  gas  company,  the  legislature  reserved  the 
power  to  alter,  modify,  or  repeal  the  charter,  it  is  com- 
petent for  it,  by  subsequent  legislation,  to  subject  the  com- 
pany to  supervision  and  control,  and  to  confer  the  power 
upon  the  municipal  corporation  in  which  the  works  of  the 
company  are  erected  to  regulate  the  price  of  gas,  and  or- 
dinances duly  passed  in  pursuance  of  such  power  are  bind- 
ing upon  the  company.1 

§  31.  Some  of  the  leading  differences  heretofore  gener- 
ally recognized  between  public  and  private  corporations 
are  well  illustrated  and  clearly  stated  in  a  case  decided 
in  New  Jersey.  In  an  action  by  a  riparian  proprietoj 
against  a  canal  company,  for  obstructing  a  watercour-e, 
the  company  insisted  that  it  was  not  liable,  because  the 
work  was  authorized  by  its  charter  ;  that  the  acts  it  did 
were  legal ;  that  the  injury  complained  of  was  conse- 
quential ;  that  the  enterprise  was  a  public  work,  designed 
for  public  purposes,  and  that  the  company,  in  executing 
it,  acted  as  the  public  agents  of  the  state.  But  the  court 
held  that  the  company  was  not  a  public  corporation.  On 
this  point  Nevius,  J.,  the  organ  of  the  court,  observed: 
"  Public  corporations  are  political  corporations,  or  such  as 
are  founded  wholly  for  public  purposes,  and  the  whole  in- 
terest in  which  is  in  the  public.  The  fact  of  the  public 
having  an  interest  in  the  works  or  the  property  or  the  ob- 
ject of  a  corporation,  does  not  make  it  a  public  corporation. 
All  corporations,  whether  public  or  private,  are,  in  con- 
templation of  law,  founded  upon  the  principle  that  they 
will  promote  the  interest  or  convenience  of  the  public.  A 
bank  is  a  private  corporation,  yet  it  is,  in  the  eye  of  the 
law,  designed  for  public  benefit.  A  turnpike  or  a  canal 
company  is  a  private  company,  yet  the  public  have  an  in- 
terest in  the  use  of  their  works,  subject  to  such  tolls  and 
restrictions  as  the  charter  has  imposed.  The  interest,  there- 
fore, which  the  public  may  have  in  the  property  or  in  the 
objects  of  a  corporation,  whether  direct  or  incidental  (un- 
less it  has  the  whole  interest),  does  not  determine  its  char- 

1  State  v.  Cincinnati  Gas  Company,  18  Ohio  St.  262,  1868.  See,  also, 
Norwich  Gaslight  Company  v.  Norwich  City  Gas  Company,  25  Conn.  19, 
1856;  State  v.  Milwaukee  Gas  Light  Company,  29  "Wis.  454,  1872. 


142  MUNICIPAL    CORPORATIONS.  [Ch.  IV. 

acter  as  a  public  or  private  corporation.  In  the  present 
case,  whatever  may  have  been  the  objects  of  the  corporation, 
whether  to  erect  a  public  navigable  highway,  or  to  improve 
the  navigation  of  the  Raritan  river,  or  whether  the  public 
have  a  right  to  the  use  and  enjoyment  of  these  improve- 
ments, when  made,  or  not,  the  company  are  essentially  a 
private  company,  and  are  not  [in  the  sense  which  will  con 
fer  the  state's  exemption  from  liability,]  the  agents  of  the 
state.  Their  works  are  not  constructed  by  the  requiremenl 
of  the  state,  nor  at  the  expense  of  the  state,  nor  does  the 
stock  belong  to  the  state,  nor  is  the  state  answerable  for  the 
lands  or  materials  used  in  the  construction  of  these  works, 
or  responsible  for  the  debts  of  the  company,  or  for  injuries 
committed  by  them  in  the  execution  of  their  work.  The 
state  could  not  compel  the  company  to  construct  this  canal 
or  improve  the  navigation  of  the  river  ;  it  has  permitted 
them  to  do  so  at  their  own  request.  The  company  might 
have  abandoned  the  work  whenever  they  saw  fit ;  they  may 
now  abandon  it  without  responsibility  to  the  state,  The 
corporation  itself,  the  property  of  the  corporation,  the  ob- 
ject of  the  corporation  are  essentially  private,  subject  only 
to  public  use,  under  their  own  restrictions,  and  from  which 
use,  the  company  are  to  derive  the  profits/'  ' 

1  Ncvius,  J.,  Ten  Eyck  v.  Canal  Company,  3  Harrison  (N.  J.)  200,  203, 
1841 ;  approved,  Hanson  v.  Vernon,  27  Iowa,  28,  53,  1869. 

In  an  elaborate  and  well-considered  opinion,  in  which,  the  court  of  ap- 
peals of  Maryland  held  the  regents  of  the  university  of  that  state  to  be  a 
private  corporation,  though  its  ends  were  public,  Buchanan,  C.  J.,  delivering 
the  judgment  of  the  court,  thus  defines  a  public  corporation :  "  k.  public  cor- 
poration is  one  that  is  created  for  political  purposes,  with  political  powers, 
to  be  exercised  for  purposes  connected  with  the  public  good  in  the  admin- 
istration of  civil  government ;  an  instrument  of  the  government  subject  to 
the  control  of  the  legislature  and  its  members,  officers  of  the  government, 
for  the  administration  or  discharge  of  public  duties,  as  in  the  cases  of  cities, 
towns,  &c. ;  so  where  a  bank  is  created  by  the  government  for  its  own  uses, 
and  the  stock  belongs  exclusively  to  the  government,  it  is  a  public  corpora- 
tion; and  so  of  a  hospital  created  and  endowed  by  a  government  for 
general  purposes  of  charity."  Regents  of  University  v.  Williams,  9  Gill  & 
Johns.  (Md.)  365,  397,  1838.  See,  also,  Norris  v.  Trustees,  7  Gill  & 
Johns.  7. 

Speaking  of  public  corporations,  and  the  relations  they  sustain  to  the 
state,  the  supreme  court  of  Louisiana  uses  this  language:  "  The  government 
of  cities  and  towns,  like  that  of  the  police  jury  of  parishes  (counties),  forms 


Ch.  IV.]         EXTENT     OF     LEGISLATIVE     CONTROL.  14a 

§  32.  The  adjudged  cases  present  some  contrariety  of 
opinion  respecting  the  scope  of  legislative  authority  over 
municipal  corporations,  or  rather,  respecting  the  question 
how  far  such  corporations,  viewed  as  legal  personalities, 
are  within  the  operation  or  protection  of  the  usual  constitu- 
tional restraints  upon  legislative  power.  The  present  chap- 
ter will  be  devoted  to  a  consideration  of  this  subject,  and  it 
ran,  perhaps,  be  most  satisfactorily  presented  by  viewing  it 
in  the  light  of  actual  adjudications,  accompanied  with  such 
observations  and  comment  as  seem  to  be  suitable  and  neces- 
sary. The  extent  of  the  authority  of  the  legislature  over 
public  corporations  is  strikingly  illustrated  by  an  important 
case  decided  by  the  court  of  appeals  in  the  state  of  Mary- 
land. The  legislature  in  incorporating  a  railroad  company 
made  it  its  duty  to  locate  its  road  through  three  towns 
specially  named,  and  provided,  that  if  it  failed  to  do  so, 
"then  and  in  that  case  said  company  shall  forfeit  $1,000,000 
to  the  state  of  Maryland  for  the  use  of  Washington 
county."     The  action  was  instituted  for  the  benefit  of  the 

one  of  the  subdivisions  of  the  internal  administration  of  the  state,  and  is 
absolutely  under  the  control  of  the  legislature.  The  laws  which  establish 
and  regulate  municipal  corporations  are  not  contracts,  but  ordinary  acts  of 
legislation,  and  the  powers  they  confer  are  nothing  more  than  mandates  of 
the  sovereign  power,  and  those  laws  may  be  repealed  or  altered  at  the  will 
of  'he  legislature,  except  so  far  as  the  repeal  or  change  may  affect  the  rights 
of  third  persons  acquired  under  them."  Police  Jury  v.  Shreveport  (repeal 
of  corporation  ferry  right),  5  La.  An.  661,  1850;  State  Bank  v.  Navigation 
Company  (construction  of  charter),  3  lb.  294,  1848;  Reynolds  v.  Baldwin, 
1  lb.  162;  Haynes  v.  Municipality,  5  lb.  760;  Edgerton  v.  Municipality,  1 
lb.  435;  Board  v.  Municipality,  6  lb.  21,  1851. 

In  the  opinion  of  the  supreme  court  of  the  United  States,  holding  that 
the  legislature  of  a  state  might  lawfully  repeal  or  discontinue  a  ferry  fran- 
chise granted  to  a  municipal  corporation,  it  is  remarked  that  towns  and 
cities,  "  which  are  public  municipal  and  political  bodies,  are  incorporated 
for  public,  and  not  private,  objects.  They  are  allowed  to  hold  privileges 
or  property  only  for  public  purposes.  The  members  are  not  shareholders, 
nor  joint  partners  in  any  corporate  estate,  which  they  can  sell  or  devise  to 
others,  or  which  can  be  attached  or  levied  on  for  their  debts.  Hence,  gen- 
erally, the  doings  between  them  and  the  legislature  are  in  the  nature  of 
legislation  rather  than  compact,  and  subject  to  all  the  legislative  condi- 
tions named,  and,  therefore,  to  be  considered  as  not  violated  by  subse- 
quent legislative  changes."  Per  Woodbury,  J.,  in  East  Hartford  v.  Hart- 
ford Company,  10  How.  (U.  S.)  511,  531,  1850.  See,  also,  Trustees  v.  Tat- 
man,  13  111.  30;  New  Orleans  v.  Hoyle,  23  La.  An.  740. 


144  MUNICIPAL     CORPORATIONS.  [Ch.  IV. 

county  to  recover  the  one  million  dollars,  it  being  alleged 
that  the  defendant  had  not  constructed  its  road  in  the  man- 
ner required.  The  defendant  pleaded  that  since  the  last 
continuance  the  legislature  had  passed  an  act  repealing  that 
portion  of  the  charter  of  the  company  requiring  it  to  build 
its  road  through  said  towns,  and  specially  remitting  and 
releasing  the  forfeiture  of  81,000,000.  The  leading  ques- 
tion, which  was  argued  on  either  side  by  distinguished 
counsel,  was,  whether  the  provision  in  favor  of  the  county 
was  one  of  contract  (the  railroad  company  having  assented 
to  the  act),  and  hence  claimed  to  be  inviolable  by  legis- 
lative interference,  or  whether  it  was  one  of  penalty, 
and  therefore  subject  to  unlimited  legislative  control.  The 
court  held  the  latter  view  to  be  the  true  one,  and  that  the 
defendant  was  not  liable.  The  court  also  expressed  the 
opinion  that  if  it  should  be  treated  as  a  -contract  made  by 
the  state,  yet  it  was  a  contract  for  the  benefit  of  one  of  its 
counties,  to  which  the  money,  if  collected,  would  belong,  in 
its  political  and  public  capacity,  as  part  of  the  state,  and 
that  such  a  contract  did  not  come  within  the  meaning  of 
that  provision  of  the  national  constitution  which  prohibits  a 
state  from  impairing  the  obligation  of  a  contract,  so  as  to 
prevent  the  legislature  from  releasing  it  at  pleasure,  or  dis- 
continuing an  action  brought  for  its  enforcement  in  the 
name  of  the  state.1 

§  33.  Questions  have  arisen  under  special  constitutional 
provisions  respecting  the  authority  of  the  legislature  over 
municipal  offices  and  officers.  And  here  it  is  important  to 
bear  in  mind  the  distinction  between  state  officers — that  is, 
officers  whose  duties  concern  the  state  at  large,  or  the  gen- 
eral public,  although  exercised  within  defined  territorial 
limits — and  municipal  officers,  whose  functions  relate  ex- 
clusively to  the  particular  municipality.     The  administra- 

1  State  v.  Railroad  Co.  12  Gill  &  Johns.  (Md.)  399,  1842;  affirmed  on 
error,  3  How.  (U.  S.)  534,  1844. 

A  public  corporation  has  no  vested  right  to  fines  directed  to  be  paid  to 
it,  and  the  legislature  may  release  them.  No  contract  in  such  cases  is 
thereby  violated,  for  none  exists.  Coles  y.  Madison  County,  Broese  (I1L) 
115;  Holliday  v.  People,  5  Gilm.  (111.)  216;  Conner  v.  Bent,  1  Mo.  235; 
Rankin  v.  Beaird,  Breese  (111.)  123.  Effect  of  executive  pardon  on  fines 
going  to  county,  Holliday  v.  People,  5  Gilm.  (111.)  216. 


Ch.  IV.]  EXTENT     OF     LEGISLATIVE     CONTROL.  145 

tion  of  justice,  the  preservation  of  the  public  peace,  and  the 
like,  although  confided  to  local  agencies,  are  essentially 
matters  of  public  concern  ;  while  the  enforcement  of  mu- 
nicipal by-laws  proper,  the  establishment  of  gas  works,  of 
water  works,  the  construction  of  sewers,  and  the  like,  are 
matters  which  pertain  to  the  municipality,  as  distinguished 
from  the  state  at  large.1  The  constitution  of  Michigan 
enjoined  upon  the  legislature  to  "provide  for  the  incorpora- 
tion and  organization  of  cities  and  villages ;"  gave  it 
authority  to  confer  upon  them  such  powers  of  a  local  legis- 
lative and  administrative  character  as  it  should  deem 
proper,  and  contained  the  further  provision  that  "judicial 
officers  of  cities  and  villages  shall  be  elected,  and  all  other 
[municipal]  officers  shall  be  elected,  or  appointed,  at  such 
time  and  in  such  manner  as  the  legislature  may  direct;" 
and  it  was  held  by  the  Supreme  *Court  of  the  state,  in  a 
cause  that  underwent  great  consideration,  and  in  which  the 
judges  delivered  separate  opinions,  that  while  the  legislature 
was  left  free  to  appoint  officers  not  municipal,  such,  for 
example,  as  a  board  of  police  commissioners  in  and  for  a. 
city,  yet  that  it  was  restrained  by  the  above-mentioned 
provisions,  especially  by  the  one  last  quoted,  from  itself 
directly  appointing  municipal  officers,  whose  duties  and 
authority  were  plainly  and  exclusively  local,  such  as  the 
board  of  water  commissioners  and  board  of  sewer  commis- 
sioners for  a  particular  city.11 

1  People  v.  Hurlburt,  24  Mich.  44,  1871.  The  distinction  mentioned  in 
in  the  text  is  there  accurately  drawn,  and  clearly  stated  and  illustrated  in 
the  admirable  opinion  of  Campbell,  C.  J.  Ante,  sees.  10,  11.  See  chapter 
on  Corporate  Officers,  post,  sees.  772,  802. 

a  People  v.  Hurlburt,  supra,  distinguished  from  People  v.  Mahaney,  13 
Mich.  481 ;  ante,  sec.  9,  and  notes.  So,  under  the  constitution  of  Kentucky, 
■which  contains  a  provision  that  "  officers  of  towns  and  cities  shall  be  elected 
for  such  terms,  and  in  such  manner,  and  with  such  qualifications,  as  may 
be  prescribed  by  law,"  and  "shall  reside  within  their  respective  districts," 
it  was  held  that  the  legislature  could  not  authorize  the  governor  to  appoint 
municipal  officers,  since  the  constitution  requires  that  they  shall  be  elected 
by  the  voters  of  the  iown  or  city  (Speed  v.  Crawford,  3  Met.  [Ky.]  207,  1860), 
but  it  was  also  likewise  held  that  it  was  within  the  power  of  the  legislature 
to  pass  an  act  depriving  the  mayor  and  council  of  a  designated  city  of  the 
power  to  elect  the  police  force  thereof,  and  establishing,  instead,  a  board  of 
police  for  the  city  and  the  county  in  which  the  city  was  situate,  to  be  elected 
10 


146  MUNICIPAL    CORPORATIONS.  [Oh.  TV, 

g  34.  And  it  lias  elsewhere  been  several  times  deter 
mined  that  the  legislature  ma}',  unless  specially  restricted 
in  the  constitution,  take  from  a  municipal  corporation  its 
charter  powers  respecting  the  police  and  their  appointment, 
and  by  statute  itself  directly  provide  for  a  permanent  police 
for  the  corporation,  under  the  control  of  a  board  of  police, 
not  appointed  or  elected  by  the  corporate  authorities,  but 
consisting  of  commissioners  named  and  appointed  by  the 
legislature.  And  a  provision  in  such  a  law,  transferring 
to  such  commissioners,  for  the  purposes  of  the  new  police, 
the  use  of  the  police  telegraph,  station-houses,  watch- 
boxes,  &c,  provided  by  the  corporation,  is  valid,  since  it 
only  takes  city  property  dedicated  to  a  particular  use,  and 
applies  it  to  the  same  purpose,  changing  only  the  agency  by 
which  the  use  is  directed;  the  property  is  still  the  city's.' 

♦ 

by  the  qualified  voters  of  the  city  and  county,  and  that  this  board,  thus 
elected,  should  select  and  enroll  the  permanent  police  force  of  the  city"  which, 
it  was  provided,  should  be  taxed  to  pay  them.  Police  Commissioners  v. 
Louisville,  3  Bush  (Ky.)  597,  1868.  See  Richmond  Mayoralty  Case,  19 
Gratt.  (Va.)  673. 

1  Baltimore  v.  Board  of  Police  (affirming  validity  to  the  Baltimore  Police 
Bill),  15  Md.  376,  1859.  There  is  nothing  in  the  maxim  that  "Taxation 
and  representation  go  together,"  that  can  preclude  the  legislature  from  es- 
tablishing, in  a  city,  a  metropolitan  police  board,  with  power  to  estimate 
the  expenses  of  the  police,  and  compelling  the  city  authorities  to  raise,  by 
taxation,  the  amount  so  estimated.  Every  city  is  represented  in  the  state 
legislature,  and  it  is  for  that  body  to  determine  how  much  power  shall  be 
conferred  by  the  municipal  charters  which  it  grants.  People  v.  Mahaney, 
13  Mich.  481 ;  see,  also,  same  principle,  People  v.  Draper,  15  N.  T.  532, 
1857,  where  the  act  to  establish  the  metropolitan  police  district  was  held 
constitutional;  Police  Commissioners  v.  Louisville,  3  Bush  597;  Diamond  v. 
Cain,  21  La.  An.  309,  1869;  State  v.  Leovy,  lb.  538.  The  cases  concur  in 
holding  that  police  officers  are,  in  fact,  state  officers,  and  not  municipal, 
although  a  particular  city  or  town  be  taxed  to  pay  them.  Post,  sec.  773. 
An  act  which  makes  the  mayor  and  aldermen  of  a  corporation  commission- 
ers of  the  court-house  and  jail  may  be  repealed  by  the  legislature,  and 
these  buildings  placed  under  the  control  of  county  or  other  officers.  State 
v.  Mayor,  R.  M.  Charlt.  (Geo.j  250;  see,  also,  State  v.  Dews,  lb.  397.  A 
grant  to  a  city  to  aid  in  building  court-house,  and  for  educational  purposes, 
is  subject,  until  executed,  to  legislative  resumption  and  control.  Bass  v. 
Fontleroy,  11  Texas,  698. 

The  management  and  mode  of  electing  trustees  of  an  incorporated 
academy,  which  is  endowed  entirely  by  the  state,  may  be  changed  by  the 
legislature  at  its  pleasure.     Dart  v.  Houston,  22  Geo.  506;  see,  also,  Uni- 


Oh.  IV.]  EXTENT     OF     LEGISLATIVE     CONTROL.  147 

So  in  the  absence  of  special  restriction  it  is  constitutionally 
competent,  likewise,  to  the  legislature  of  a  state  to  direct 
that  the  county  shall  pay  a  portion  of  the  expenses  of  a 
police  force  in  a  city  situated  wholly  within,  and  forming 
part  of,  the  county.  It  may  even  direct  a  county  to  appro- 
priate part  of  its  revenue  already  collected  in  this  way,  since 
such  legislation  is  not  unconstitutional,  as  being  retrospec- 
tive in  its  operation,  or  as  taking  away  vested  rights,  or 
impairing  the  obligation  of  contracts,  or  violating  the  princi- 
ples of  taxation.  As  moneys  acquired  by  taxation  are  not 
strictly  the  private  property  of  the  county,  such  legislation 
is  not  the  application  of  private  property  to  public  use 
without  compensation,  since  the  police  board,  by  virtue  of 
the  act  creating  it,  was  an  agency  of  the  state  government 
and  performed  public  duties.1 

§  35.  The  legitimate  authority  of  the  legislature  over 
municipal  corporations  extends  to  making  provisions  con- 
cerning their  funds  and  revenues,  and  the  authority  is  not 
abridged  because  the  purpose  to  which  the  revenue  is  to  be 

versity  of  North  Carolina  v.  Maultsby,  8  Ire.  Eq.  257 ;  University  of  Ala- 
bama v.  "Winston,  5  Stew.  &  Port.  17 ;  Louisville  v.  University  of  Louisville, 
15  B.  Mon.  645 ;  Visitors,  &c.  v.  State,  15  Md.  330. 

1  State  ex  rel.  St.  Louis  Police  Commissioners  v.  St.  Louis  County  Court 
(mandamus),  34  Mo.  546,  1864;  centra.  Mayor,  &c.  v.  Tows,  5  Sneed  (Tenn.) 
186.  The  view  of  the  Supreme  Court  of  Missouri  is  undoubtedly  the  cor- 
rect one.  Approved,  St.  Louis  v.  Shields,  Supreme  Court,  Missouri,  March, 
1873. 

The  maintenance  of  a  police  force  may  be  committed  to  the  corporate 
authorities  of  a  municipality,  and  if  there  are  no  special  constitutional  re- 
strictions on  the  power  of  the  legislature,  it  may  authorize  the  assessment 
of  a  tax  upon  the  keepers  of  saloons  and  restaurants  in  the  municipality  for 
the  purpose  of  maintaining  such  police  force  therein,  to  be  levied  and  col- 
lected as  other  taxes.  Durach's  Appeal,  62  Pa.  St.  491,  1869 ;  Post,  sees 
592,  594,  032 ;  Railroad  Company  v.  Adler,  56  111.  344,  1870. 

School  districts  being  public  corporations,  under  legislative  control,  a 
law  providing  that  school  debts  might  be  paid  in  bills  of  the  state  bank  of 
the  state,  is  valid  as  against  the  objection  that  the  legislature  had  no  power 
to  direct  that  anything  except  gold  and  silver  should  be  received  in  pay- 
ment of  debts.     Bush  v.  Shipman.  4  Scam.  (111.)  190. 

A  municipal  corporation  may  constitutionally  be  exempted  from  pro- 
spective liability  for  nonfeasance  of  its  officers  or  liability  for  torts.  Gray 
c.  Brooklyn,  10  Abb.  Pr.  R.  N.  S.  186;  post,  sec.  760. 


148  MUNICIPAL     CORPORATIONS.  [Ch.  IV. 

appropriated  is  specified  in  the  charter,  and  the  ground  of 
the  doctrine  is,  that  such  corporations  have  no  vested  rights 
in  powers  conferred  upon  them  for  civil,  political,  or  admin- 
istrative purposes.  Thus,  the  legislature  may  repeal  the 
power  it  had  given  to  cities  to  grant  licenses  for  the  sale  of 
intoxicating  liquors,  although  the  money  to  be  derived  from 
the  sale  of  such  licenses  was  directed  to  be  appropriated  to 
the  support  of  paupers  within  the  city.1  Such  an  authority, 
it  was  remarked,  "gives  the  city  no  more  a  vested  right  to 
issue  licenses,  because  the  legislature  specified  the  objects  to 
which  the  money  should  be  applied,  than  if  it  had  been  put 
into  the  general  fund  of  the  city."  a 

§  36.  Legislative  acts  respecting  municipal  corporations 
not  being  in  the  nature  of  contracts,  the  provisions  thereof 
may  be  changed  at  pleasure  where  the  constitutional  rights 
of  creditors  and  others  are  not  invaded.     By  act  of  the  leg- 

1  Gutzweller  v.  People,  14  111.  142,  1852.     Ante,  sec.  30,  note. 

'  Gutzweller  v.  People,  14  111.  142,  1852,  per  Caton,  J.  See,  also,  Rich- 
land Co.  v.  Lawrence  Co.,  12  111.  1,  1850;  People  v.  Power,  25  111.  187; 
Richmond  v.  Richmond,  &c.  R.  R.  Co.  21  Gratt.  (Va.)  604,  1872,  holding 
that  the  state  may  exempt  property  from  municipal  taxation.  By  the 
charter  of  a  municipal  corporation  there  was  granted  to  it  sole  power  to 
grant  licenses  to  sell  spirituous  liquors  within  its  limits,  and  to  appropriate 
the  money  arising  therefrom  to  city  purposes.  Subsequently  the  legislature 
passed  an  act  directing  the  money  thus  arising  to  be  paid  by  the  corpora- 
tion to  an  academy  located  within  the  town.  The  municipal  corporation 
refused  to  pay  over  to  the  academy  an  amount  received  for  licenses  after  the 
passage  of  the  last  named  act,  and  the  academy  brought  an  action  to  re- 
cover it.  The  court  held  the  subsequent  act  to  be  unconstitutional,  and 
that  the  town  was  not  liable.  The  court  were  of  opinion,  that,  by  its 
charter,  the  town  had  a  vested  right  in  the  profits  arising  from  licenses. 
It  admitted  that  the  legislature  might  altogether  take  away  from  the  town 
the  power  to  grant  licenses;  but  if  it  allowed  the  power  to  remain,  it 
denied  the  right  of  the  legislature  "  to  make  a  different  disposition  of  the 
funds  arising  from  euch  licenses,  from  that  contained  in  the  charter,  unless 
with  the  consent  of  the  corporation."  Trustees  of  Aberdeen  Academy  v. 
Aberdeen,  13  Sm.  &  Marsh.  (Miss.)  645,  1850.  See,  also,  Aberdeen  v.  Saun- 
derson,  8  lb.  663.  The  doctrine  that  the  town  corporation  had  a  vested 
right  in  profits  arising  from  licenses,  cannot,  we  think,  be  sustained,  and  ia 
not  in  harmony  with  the  decisions  elsewhere. 

County  and  township  funds  are  under  legislative  control.  County  v. 
State,  11  111.  202;  County  v.  County,  12  111.  1;  Dennis  v.  Maynard,  15  I1L 
477;  Love  v.  Schenck,  12  Ire.  Law,  304;  Love  v.  Ramsour,  lb.  328. 


Ch.  IV.]  EXTENT     OP     LEGISLATIVE     CONTROL.  149 

islature  the  separate  city  of  Lafayette  was  added  to  and 
incorporated  with  the  city  of  New  Orleans,  with  a  provision 
that  the  added  district,  which  was  less  in  debt  than  the  city 
of  New  Orleans,  should  be  charged  only  with  its  own  debts  ; 
and  by  a  subsequent  act  of  the  legislature  it  was  provided 
that  taxes  should  be  equal  and  uniform  throughout  the 
entire  limits  of  the  city,  the  effect  of  which  was  to  increase 
the  amount  of  taxes  to  be  raised  within  that  portion  of  the 
corporation  which  was  formerly  the  city  of  Lafayette.  A 
bill  was  filed  by  residents  and  property  owners  of  the  an- 
nexed district  to  enjoin  the  collection  of  the  excess  of  taxes 
beyond  the  amount  fixed  by  the  act  incorporating  the  an- 
nexed district  into  the  "old  city,"  claiming  that  the  act 
was  a  contract,  and  the  levy  of  taxes  under  the  latter  act,  so 
far  as  regards  debts  due  antecedently  to  the  annexation, 
violated  the  vested  rights  of  the  inhabitants  of  the  annexed 
district.  The  Supreme  Court,  on  the  ground  that  public 
corporations  are  wholly  under  the  control  of  the  legislature, 
which  has  the  power  to  provide  in  what  manner  taxes  shall 
be  levied  for  their  support,  and  how  their  debts  shall  be 
.paid  on  their  dissolution,  held  the  act  authorizing  increased 
taxation  to  be  valid,  and  dismissed  the  bill.1 

§  37.  The  power  of  the  legislature  to  alter  and  abolish 
municipal  corporations,  to  erect  new  corporations  in  the 
place  of  the  old,  to  add  to  the  old,  or  to  carve  out  of  the  old 
a  new  corporation,  or  the  power  to  divide  and  dispose  of 
the  property  held  by  such  corporations  for  municipal  pur- 
poses, is  not  defeated  or  affected  by  the  circumstance  that 
the  corporation  is,  by  its  charter,  made  the  trustee  of  a 
charity,  or  of  other  private  rights  and  interests.  Where 
the  legal  existence  of  the  municipal  trustee  is  destroyed  by 
legislative  act,  the  Court  of  Chancery  will  assume  the  exe- 
cution of  the  trust,  and,  if  necessary,  will  appoint  new  trus- 
tees to  take  charge  of  the  property  and  carry  into  effect  the 
trust,' 

1  Layton  v.  New  Orleans,  12  La.  An.  515,  1857.  See,  also,  Girard  v. 
Philadelphia,  7  Wall.  1,  1868;  People  v.  Hill,  7  Cal.  97,  1857;  post,  chap 
VIII;    State  v.  Flanders,  24  La.  An.  57. 

'  Girard  v.  Philadelphia,  7  Wall.  1,  1868;  Philadelphia  v.  Fox,  64  Pa. 
St.  109,  1870;  Montpelier  v.  East  Montpelier  (division  of  town  and  contest 
as  to  trust,  property  held  for  the  benefit  of  the  inhabitants  of  the  original 


150  MUNICIPAL    CORPORATIONS.  |G'h-  IV. 

§  38.  The  supremacy  of  the  legislative  authority  over 
municipal  corporations  is  not,  however,  in  all  respects,  un- 
limited ;  but  the  limitations  must  be  sought  either  in  the 
national  or  state  constitution,  and  if  not  there  found,  in 
terms,  or  by  fair  implication,  they  do  not  exist.  In  Eng 
land,  it  is  settled  that  the  crown  has  no  power,  without  the 
consent  of  those  to  be  affected  thereby,  to  alter  or  abolish  mu- 
nicipal charters,  or  to  impose  new  ones  on  the  corporation. 
But  parliament  may  create  new  corporations,  or  abolish  or 
alter  charters,  or  impose  new  ones,  at  its  will,  and  without 
the  consent  of  the  inhabitants.  And  so  may  the  state  legis- 
latures in  this  country,  if  there  be  no  special  constitutional* 
restriction,  as  generally  there  is  not,  upon  the  power.1 

§  39.  It  may  assist  to  an  understanding  of  the  extent  of 
legislative  power  over  municipal  corporations  proper  (incor- 
porated towns  and  cities)  to  observe,  that  these,  as  ordi- 
narily constituted,  possess,  according  to  many  courts,  a 
double  character — the  one  governmental,  legislative,  or 
public;  the  other,  in  a  sense,  proprietary  or  private.  The 
distinction  between  these,  though  sometimes  difficult  to 
trace,  is  highly  important,  and  is  frequently  referred  to, 
particularly  in  the  cases  relating  to  the  implied  or  common 
law  liability  of  municipal  corporations  for  the  negligence  of 
their  servants,  agents,  or  officers  in  the  execution  of  corpo- 
rate duties  and  powers.  On  this  distinction,  indeed,  rests 
the  doctrine  of  such  implied  liability. a     In  its  governmental 

township),  29  Vermont  (3  Wins.)  12,  1856;  same  controversy  at  law,  27 
Vermont,  704.  See  infra,  sec.  47,  and  chapters  on  Corporate  Property  and 
Remedies  against  Illegal  Corporate  Acts,  post. 

1  St.  Louis  v.  Allen  (extension  of  city  limits),  13  Mo.  400,  1850;  St. 
Louis  v.  Russell,  9  Mo.  503,  1845.  It  is  justly  observed,  that  "  Most,  if  not 
all,  of  the  leading  cases  in  the  books,  involving  the  question  of  the  inviola- 
bility of  municipal  charters,  in  the  English  courts,  arose  between  the  pre- 
rogative of  the  croicn  and  the  corporation.  The  right  or  power  of  parliament 
in  England,  or  of  the  legislature  here,  would  present  (and  was  decided  to 
present)  Quite  a  different  question."  Per  Nelson,  J.,  in  People  v.  Morris, 
13  Wend. -825,  334,  1835;  Philadelphia  v.  Field,  58  Pa.  St.  320,  1868. 

8  Ante,  sees.  10,  11.  "The  distinction  is  well  established  between  the 
responsibilities  of  towns  and  cities  for  acts  done  in  their  public  capacity,  in 
the  discharge  of  duties  imposed  on  them  by  the  legislature  for  the  public 
benefit,  and  for  acts  done  in  what  may  be  called  their  private  character,  a 


Ch.  IV.]         CREATION     OF     PUBLIC     CORPORATIONS.  151 

or  public  character,  the  corporation  is  made,  by  the  state, 
one  of  its  instruments,  or  the  local  depositary  of  certain 
limited  and  prescribed  political  powers,  to  be  exercised  for 
the  public  good,  on  behalf  of  the  state,  and  not  for  itself. 
In  this  respect  it  is  assimilated,  in  its  nature  and  functions, 
to  a  county  corporation,  which,  as  we  have  seen,  is  purely 
part  of  the  governmental  machinery  of  the  sovereignty 
which  creates  it.  Over  all  its  civil,  political,  or  govern- 
mental powers,  the  authority  of  the  legislature  is,  in  the 
nature  of  things,  supreme  and  without  limitation,  unless 
the  limitation  is  found  in  some  peculiar  provision  of  the 
constitution  of  the  particular  state.  But  in  its  proprietary 
or  private  character,  the  theory  is,  that  the  powers  are  sup- 
posed not  to  be  conferred,  primarily  or  chiefly,  from  con- 
siderations connected  with  the  government  of  the  state  at 
large,  but  for  the  private  advantage  of  the  particular  corpo- 
ration as  a  distinct  legal  personality,  ana  as  to  such 
powers,  and  to  property  acquired  thereunder,  and  contracts 
made  with  reference  thereto,  the  corporation  is  to  be  re- 
garded as  quo  ad  hoc  a  private  corporation,  or,  at  least,  not 
public  in  the  sense  that  the  power  of  the  legislature  over  it 
is  omnipotent.1 

the  management  of  property  and  rights  voluntarily  held  by  them  for  their 
own  immediate  profit  or  advantage,  as  a  corporation,  although  inuring,  of 
course,  ultimately  to  the  benefit  of  the  public."  Per  Gray,  J.,  in  Oliver  v. 
Worcester,  102  Mass.  489,  499,  1869;  S.  P.  Detroit  v.  Corey,  9  Mich.  165, 
184,  1861.  In  the  one  case,  no  private  action  lies  unless  it  be  expressly 
"given;  in  the  other,  there  is  an  implied  or  common  law  liability  for  the 
negligence  of  their  officers  in  the  discharge  of  such  duties.  In  further 
illustration  of  this  alleged  dual  character,  the  reader  is  referred  to  the  cases 
cited  in  the  next  note.     Post,  §§  761,  778,  779. 

1  West.  Sav.  Fund  Soc.  v.  Philadelphia,  31  Pa.  St.  175;  lb.  185;  Bailey 
t>.  Mayor,  &c.  of  New  York,  3  Hill,  531 ;  Small  v.  Danville,  51  Maine,  359; 
Jones  v.  New  Haven,  34  Conn.  1 ;  Western  College  v.  Cleveland,  12  Ohio 
St.  375,  1861;  Howe  v.  New  Orleans,  12  La.  An.  481;  Martin  v.  Mayor,  &c. 
1  Hill,  545;  Buttrick  v.  Lowell,  1  Allen,  172;  Oliver  v.  Worcester,  102 
Mass.  489,  1869;  Touehard  v.  Touchard,  5  Cal.  306;  Gas  Co.  v.  San  Fran- 
cisco. 9  Cal.  453;  Commissioners  v.  Duckett,  20  Md.  468;  Weet  v.  Brook- 
port,  16  N.  Y.  161,  note;  Louisville  v.  University  of  Louisville,  15  B.  Mon. 
642;  Louisville  v.  Commonwealth,  1  Duvall  (Ky.)  295;  Weightinan  v. 
Washington,  1  Black  (U.  S.)  39,  1861;  Reading  v.  Commonwealth,  11  Pa 
St.  196,  1849;  Richmond  v.  Long's  Admr.,  17  Gratt.  (Va.)  375;  De  Voss  v. 
Richmond,  18  Gratt.  338;  S.  C,  7  Am.  Law  Reg.  (N.  S.)  589;  Detroit  • 


152 


MUNICIPAL     CORPORATIONS.  [Ch.  IV. 


§  40.  It  is,  perhaps,  at  present,  impossible  to  state,  with 
confidence,  what  limitations  exist  upon  the  power  of  the 
legislature  over  municipal  corporations,  as  ordinarily  con- 
stituted.    It  is  practicable  only  to  refer  to  the  leading  cases 

Corey,  9  Mich.  165,  184,  1861;  People  v.  Hurlburt,  24  Mich.  44,  1871, 
opinion  of  Cooley,  J.  As  to  what  are  municipal  duties,  and  what  falte 
within  the  scope  of  municipal  powers,  see  United  States  v.  Baltimore  & 
Ohio  Railroad  Company,  decided  by  the  United  States  Supreme  Court,  De- 
cember term,  1872.     Post,  sec.  615  a. 

This  division  of  the  powers  and  duties  of  a  municipal  corporation  into 
two  classes,  one  public  and  the  other  private,  is,  to  our  mind,  far  from  sat- 
isfactory; and  the  private  character  thus  ascribed  to  it,  difficult  exactly  to 
comprehend.     In  what  sense  are  powers  conferred  and  to  be  exercised  for 
the  good  of  all  the  people  of  the  place,  private  ?     Wherein  do  such  powers, 
in  their  origin  or  nature,  differ  from  those  admitted  to  be  public  ?     Are  not 
all  powers  conferred  upon  municipalities,  whether  many  or  few,  given,  and 
given  only,  for  their  better  regulation  and  government,  and  to  promote 
their  welfare  as  parts  of  the  state  at  large  ?     The  small  municipality,  with 
few  and  simple  powers,  is  no  more  completely  under  the  supreme  dominion 
of  the  legislature  than  the  more  populous  one,  requiring  for  its  proper  gov- 
ernment organs  and  powers  peculiar  to  itself.     Are  the  latter,  therefore, 
private  ?     If  so,  it  must  be  in  a  qualified  and  peculiar  sense.     Ante,  p.  97. 
Contracts  in  favor  of  the  creditor  are  protected  by  the  national  constitu- 
tion ■   but  as  against  a  state,  what  private  powers  and  rights  can  a  muni- 
cipal corporation  be  said  to  have,  when  it  is  within  the  power  of  the  state, 
which  breathed  into  it  the  breath  of  life,  utterly  to  extinguish  its  existence 
at  pleasure.     The  distinction  originated  with  the  courts,  to  promote  justice 
and  to  escape  technical  difficulties  in  order  to  hold  such  corporations  liable 
to  private  actions.     On  this  subject,  the  opinion  of  Chief  Justice  Denio,  in 
Darlington  v.   Mayor,  &c,  31  N.  Y.   164,  1865,  may  be   read  with  profit. 
The  Chief  Justice  there  asserts  the  unlimited  power  of  the  legislature  ove» 
municipal  corporations  and  their  property.     He  maintains  that  such  corpo- 
rations are  altogether  public,  and  all  their  rights  and   powers  public  in 
tneir  nature,  and  that  their  property,  though  held  for  income  or  sale,  and 
unconnected  with  any  use  for  the  purposes  of  the  municipal  government,  is 
under  the  control  of  the  legislature,  and  not  within  the  provisions  of  the 
constitution  protecting  private  property.     He  denies  the  correctness  of  the 
distinction  taken  in  Bailey  v.  The  Mayor,  &c,  of  New  York,  3  Hill,  531, 
and  other  cases,  between  the  public  and  private  functions  of  city  govern- 
ments, and  maintains  that  as  respects  the  state,  all  their  powers  and  func- 
tions are  public.     He  affirms  that  the  legislature  may  compel  a  municipal 
corporation  to  submit  to  arbitration  claims  as  to  which  private  corporations 
and  natural  persons  would  be  entitled  by  the  constitution  to  a  trial  by  jury. 
Gray  v.  Brooklyn,  10  Abb.  Pr.  Rep.  N.  S.  186;  post,  sec.  760.     See,  as  to 
jury,  Dunsmore's  Appeal,  52  Pa.  St.  374.     Holding  contrary  view,  Plimp- 
ton v.    Somerset,    33   Vt.    283,    1860.     See,    also,    chapters   on   Municipal 
Courts,  Property,  and  Ordinances,  post. 


Ch    IV.1  EXTENT     OF    LEGISLATIVE     CONTROL.  153 

upon  the  subject,  and  attempt  to  extract  the  principles  upon 
which  they  rest. 

It  is  decided  that  a  grant  by  the  legislature  of  the  state  to 
a  town,  of  the  right  to  establish  a  ferry,  is  not  in  the  nature 
of  a  contract,  hence  the  grant  is  repealable,  and  the  corpora- 
tion may  constitutionally  be  deprived  of  the  franchise.1  So  an 
act  conferring  upon  a  municipal  corporation  a  'public  trust, 
and  the  title  to  land&s  ancillary  to  its  execution,  is  not  a  con- 
tract, but  may  be  repealed  at  the  will  of  the  legislature.1  But 
suppose  the  legislature  had  granted  in  fee,  to  the  corporation, 
a  tract  of  land  within  its  limits,  is  such  a  grant,  or  an  ordinary 
grant  of  land  to  the  corporation  from  others,  a  contract  as 
respects  the  state,  and  protected  by  the  constitution  from 
legislative  invasion,  the  same  as  if  the  grant  had  been  made 
to,  or  the  property  acquired  by,  an  individual  or  private 
corporation  ?  The  question  thus  stated  has  never  arisen 
directly  for  adjudication  in  the  Supreme  Court  of  the  United 
States ;  but,  in  the  celebrated  Dartmouth  College  Case,  two 
of  the  judges  expressed  the  opinion  that  the  legislative  con- 
trol over  public  and  municipal  corporations  was  not  so 
transcendent  and  absolute  as  to  extend   *^   an   arbitrary 

1  East  Hartford  v.  Hartford  Bridge  Co.,  10  How.  511,  1850;  S.  C,  16 
Conn.  149;  17  lb.  79;  Trustees  v.  Tatman,  13  111.  30;  Police  Jury  v. 
Shreveport,  5  La.  An.  661,  1850;  Darlington  v.  Mayor,  31  N.  Y.  164,  202, 
203,  per  Denio,  C.  J. 

3  People  v.  Vanderbilt,  26  N.  Y.  287,  1863.  Where  an  act  incorporat- 
ing a  city  donated  lands  included  therein,  for  the  erection  of  certain  public 
buildings,  and  the  residue  to  be  applied  to  education,  and  the  charter  was 
afterwards  repealed,  it  was  held  that  until  the  trust  had  been  executed  it 
was  competent  for  the  legislature  to  change  or  abolish  it,  and  th;it  the  re- 
peal of  the  charter  extinguished  the  trusts,  they  being  public,  unexecuted, 
and  conditional.  Bass  v.  Fontleroy,  11  Texas,  698-708,  1854.  Where  an 
act  of  the  legislature,  instead  of  granting  certain  moneys  received  by  the 
sti?te  for  the  purposes  of  internal  improvements  to  certain  counties  abso- 
lutely, simply  appropriated  it  to  be  drawn  by  such  counties  and  expended  by 
them  in  the  improvement  of  roads,  &c,  it  was  held  that  before  its  expendi- 
ture by  the  counties  the  legislature  had  entire  control  over  the  fund,  and 
might  resume  or  change  the  purposes  for  which  it  was  originally  designed 
to  be  expended,  or  provide  for  the  payment  by  an  old  county,  which  had 
received,  but  not  expended,  its  proportion  of  such  fund,  to  a  new  countj 
erected  out  of  the  old  county  of  an  equitable  share  of  the  fund.  Richland 
County  v.  Lawrence  County,  12  111.  1,  1850,  distinguished  from  Hampshire 
p.  Franklin,  16  Mass.  76.     Post,  chap.  VHL 


£54  MUNICIPAL     CORPORATIONS.  [Ch.  IV. 

divestiture  of  its  private  property  and  the  destruction  of 
rights  of  a  private  nature.  On  the  other  hand,  it  is  the 
opinion  of  a  distinguished  and  able  judge  in  New  York,  in 
a  case  already  mentioned,  that  the  authority  of  the  legisla- 
ture over  the  powers,  rights,  and  property  of  municipal 
and  public  corporations,  is,  as  respects  the  corporations, 
quite  without  limit.1  The  weight  of  opinion  seems  to  be  in 
favor  of  the  doctrine,  that  there  may  be,  in  such  corpora- 
tions, rights  under  contracts  and  grants  which  are  beyond 
destruction  by  the  legislature,  though  not  beyond  legitimate 
legislative  authorit}^  and  control  ;a  but  in  the  present  state 

1  Denio,  C.  J.,  in  Darlington  v.  New  York,  31  N.  T.  164,  1865. 

*  In  Richland  County  v.  Lawrence  County,  12  111.  1,  1850,"  while  the 
plenary  power  of  the  legislature  over  the  public,  civil,  or  political  rights  of 
public  corporations  was  asserted  and  declared,  still  it  was  admitted  by  the 
very  able  and  cautious  judge  who  delivered  the  opinion,  that  "the  state 
may  make  a  contract  with,  or  a  grant  to,  a  public  municipal  corporation 
which  it  could  not  subsequently  resume;  but  in  such  case  the  corporation 
is  to  be  regarded  as  a  private  company."  Per  Trumbull,  J.  See  "West. 
Saw  Fund  Society  v.  Philadelphia,  31  Pa.  St.  175 ;  lb.  185. 

"But  while  the  legislative  power  (to  enlarge,  restrain,  or  even  destroy 
municipal  corporations,  as  the  public  interest  may  require)  may  be  exercised 
over  public  and  municipal  corporations,  it  has  as  uniformly  been  held  that 
towns,  and  other  public  corporations,  may  have  private  rights  and  interests 
vested  in  them  under  their  charter ;  and  as  to  those  rights,  they  are  to  be 
regarded  and  protected  the  same  as  if  they  were  the  rights  and  interests  of 
individuals  or  of  private  corporations,  and  grants  of  property  in  trust  for 
other  than  corporate  and  municipal  use  (that  is,  as  we  understand,  for  pri- 
vate, as  distinguished  from  public,  purposes),  are  no  more  the  subject  of 
legislative  control  than  are  the  private  and  vested  rights  of  individuals." 
Per  Isham,  J.,  arguendo,  in  Montpelier  v.  East  Montpelier,  29  Vermont 
(3  Wins.)  12,  19,  1856 ;  S.  C,  27  lb.  704. 

Legislative  grants  of  property  to  private,  and  it  seems,  also,  to  public  and 
municipal,  corporations,  cannot  be  repealed  so  as  to  divest  the  rights  of  the 
grantees.  Town  of  Pawlet  v.  Clark,  9  Cranch  (U.  S.)  292,  336,  1815,  per 
Story,  J.,  obiter;  Terret  v.  Taylor,  lb.  43,  52.  In  this  last  case,  Mr.  Justice 
Story  remarks,  arguendo:  "In  respect,  also,  to  public  corporations,  which 
exist  only  lor  public  purposes,  such  as  counties,  towns,  cities,  &c,  the  legis- 
lature may,  under  proper  limitations,  have  a  right  to  change,  modify,  en 
large  or  restrain  them,  securing,  however,  the  property,  for  the  uses  of  those 
for  whom  and  at  whose  expense  it  was  originally  purchased."  Followed 
by  Chancellor  Kent,  2  Com.  305 ;  by  Mr.  Justice  Washington,  Dartmouth 
College  Case,  4  "Wheat.  518,  663.  In  the  last  case,  Mr.  Justice  Story  said: 
"But  it  will  hardly  be  contended,  that  even  in  respect  to  such  [public]  cor- 
porations, the  legislative  power  is  so  transcendent  that  it  may,  at  its  will, 


Ch.  IV.]  EXTENT     OF    LEGISLATIVE     CONTROL.  155 

of  the  decisions  the  subject  cannot  be  fairly  said  to  be 
settled. 

§  41.  It  is  an  interesting  inquiry,  which  has  not  yet 
arisen  for  judgment,  whether  the  legislature  of  the  state  has 
the  right,  in  virtue  of  its  control  over  municipal  corpora- 
tions, to  annul  or  interfere  with  contracts  between  two 
municipalities.  If  a  municipal  corporation,  however,  be 
comes  indebted,  the  rights  of  the  creditors  cannot,  it  is 
clear,  be  impaired  by  any  subsequent  legislative  enactment.1 

take  away  the  private  property  of  the  corporation,  or  change  the  uses  of  its 
private  funds  acquired  under  the  public  faith."  4  Wheat.  518,  694,  obiter. 
And  such  is  Mr.  Justice  Cooley^s  view  in  his  valuable  treatise.  Constitu- 
tional Limitations,  238.  He  reiterates  it  in  his  learned  opinion  in  People  v. 
Hurlburt,  24  Mich  44 ;  S.C.,  6  Am.  Law  Rev.  376,  1871.  In  Grogan  v.  San 
Francisco,  18  Cal.  590,  Mr.  Chief  Justice  Field,  delivering  the  opinion  of 
the  Supreme  Court  of  California,  takes  the  ground  that  the  real  estate  oi 
private  property  of  a  municipal  corporation  is  protected  by  the  clause  in 
the  national  constitution  securing  tho  inviolability  of  contracts;  that  all 
legislative  authority  over  it  must  be  exercised  in  subordination  to  this 
guaranty,  and  that  it  is  subject  to  legislative  control  to  the  same  extent, 
but  no  greater  extent,  than  all  other  property  in  the  state.  But  in  Darling- 
ton v.  Mayor,  &c.  of  New  York,  31  N.  Y.  164,  193,  205,  Mr.  Chief  Justice 
De/iio  observes:  "Let  us  suppose  the  city  to  be  the  owner  of  a  parcel  of 
land  not  adapted  to  any  municipal  use,  but  valuable  only  for  sale  to  private 
persons  for  building  purposes,  or  the  like ;  no  one,  I  think,  can  doubt  but 
what  it  would  be  competent  for  the  legislature  to  direct  jt  to  be  sold,  and 
the  proceeds  devoted  to  some  municipal  or  other  public  purpose,  within  the 

city,  as  a  court-house,  a  hospital,  or  the  like It  is  unnecessary 

to  say  whether  the  legislative  jurisdiction  would  extend  to  diverting  the 
city  property  to  other  public  use  than  such  as  concerns  the  city  and  its 
inabitants."  And  he  considers  the  expression  of  Chancellor  Kent  (2  Com. 
305)  and  of  Mr.  Justice  Story,  that  where  a  municipal  corporation  is  em 
powered  to  have  and  to  hold  private  property,  such  property  is  invested 
with  the  security  of  other  private  rights,  to  mean  only  that  it  possesses  such 
rights  against  wrong-doers,  and  not  that  it  is  exempt  from  legislative  con- 
trol.    31  N.  Y.  164,  196. 

1  Van  Hoffman  v.  Quincy,  4  Wall.  535;  Butz  v.  Muscatine,  8  Tb.  575; 
Lee  County  v.  Rogers,  7  lb.  175;  Furman  v.  Nichol,  8  lb.  44;  Woodruff®. 
Trapnall,  10  How.  206;  Bronson  v.  Kinsie,  1  lb.  316;  Lansing  v.  County 
Treasurer,  1  Dillon  Cir.  C.  R.  522 ;  Muscatine  v.  Railroad  Company,  lb. 
536;  State  v.  Milwaukee,  25  Wis.  122;  Brooklyn  Park  Com.  v.  Armstrong, 
45  N.  Y.  234,  1871 ;  Soutter  v.  Madison  (act  forbidding  city  to  levy  taxes 
to  pay  judgments  held  void),  15  Wis.  30 ;  Western  Savings  Fund  Society  v 
Philadelphia,  31  Pa.  St.  175,  185.  Further,  see  chapter  on  Contracts,  post 
sec.  415  et  seq. 


156  MUNICIPAL    CORPORATIONS.  [0a.  IV. 

Thus,  where  an  act  of  the  legislature  was  passed  to  provide 
for  the  payment  of  the  debts  of  a  municipal  corporation  and 
authorizing  the  creation  of  a  sinking  fund,  to  be  deposited 
and  applied  in  a  particular  manner,  and  where  creditors 
acting  thereunder  have  surrendered  the  evidences  of  their 
debts  and  received  new  bonds,  for  the  payment  of  which  the 
fund  stands  pledged  by  the  act,  it  is  not  competent — because 
it  impairs  the  obligation  of  contracts — for  a  subsequent  leg- 
islature, in  providing  for  the  liquidation  of  the  corporate 
debts,  to  give  a  different  destination  to  the  sinking  fund  by 
changing  the  depository  of  the  fund.1  So  where  the  effect 
of  an  act  of  the  legislature  authorizing  a  city  to  fund  its 
floating  debt  was,  in  substance,  a  pledge  to  those  who  sur- 
rendered their  claims  and  received  new  obligations,  to 
trustees  of  a  portion  of  her  revenues  and  property,  to  be 
applied  to  the  payment  of  her  obligations  in  a  specified 
mode,  this,  if  acted  on,  constitutes  a  contract  which  cannot 
be  materially  altered,  either  by  the  municipality  or  the  leg- 
islature, without  the  sanction  of  the  creditors  ;■  but  it  was 
held  that  a  subsequent  act,  simply  changing  the  mode  of 
levying  taxes,  and  which  did  not  and  could  not  affect  the 
result  or  impair  the  security  of  the  creditors,  was  not 
invalid.1  So,  also,  where  the  legislature  authorized  an 
indebted  city  to  issue  bonds  to  a  specified  amount,  in  pay- 
ment of  a  like  amount  of  its  outstanding  bonds,  and,  among 
other  provisions,  plainly  intended  to  induce  creditors  to 
make  the  exchange,  was  one  prohibiting  the  city  from 
thereafter  issuing  its  bonds,  "except  in  payment  of  its 
bonded  debt,"  and  this  authority  having  been  acted  on,  and 
the  arrangement  accepted  by  the  creditors,  and  new  bonds 
issued,  it  was  decided  by  the  Supreme  Court  of  Wisconsin 
that  the  prohibition  against  the  issue  of  further  bonds  con- 
stituted, in  favor  of  the  holders  of  the  new  bonds,  a  con- 
tract, which  the  legislature  could  not  impair  by  a  subse- 
quent enactment,  authorizing  the  municipality  to  issue 
additional  bonds  for  other  purposes.3 

1  Liquidators  v.  Municipality,  6  La.  An.  21,  1851.  As  to  sinking  fund, 
see  Terry  v.  Bank,  18  "Wis.  87;  post,  chapter  on  Charters.  Fraudulent 
transfers  of  property  by  municipal  corporations,  Smith  v.  Morse,  2  Cal.  524. 

'  Peoples.  Bond,  10  Cal.  563,  1858.  And  see  People  v.  Wood,  7  Cal. 
579,  1857;  Brooklyn  Park  Com.  v.  Armstrong,  45  N.  Y.  234,  1871. 

*  Smith  v.  Appleton,  19  Wis.  468,   1865.      Extent  of  legislative  powe* 


€h.  IV.]  EXTENT     OF    LEGISLATIVE     CONTROL.  157 

§  42.  But  authority  to  a  city  to  borrow  money,  and  to 
tax  all  the  property  therein  to  pay  the  debt  thus  incurred, 
does  not  necessarily  deprive  the  state  of  the  power  to  modify 
taxation  so  as  to  exempt  portions  of  the  property,  if  the 
rights  of  creditors  be  not  thereby  impaired.1  So  authority 
given  in  a  railroad  charter  to  a  county  to  take  stock  and 
issue  bonds  therefor,  if  a  majority  of  the  voters  so  deter- 
mine, is  not  a  contract,  but  a  mere  authority  conferred  upon 
the  county  in  its  public  capacity,  and  may  be  repealed  at 
amy  time  before  the  subscription  has  been  made.3 

over  municipal  indebtedness  as  against  the  municipality,  see  City  v.  Lamson, 
9  Wall.  477,  and  read,  in  connection  therewith,  Campbell  v.  Kenosha,  5 
'Wall.  194,  in  effect  overruling  the  practical  application  of  Foster  v.  Keno- 
sha, 12  Wis.  616,  1860;  post,  chapters  on  Charters  and  Contracts. 

Where  the  performance  of  the  obligation  of  a  public  or  municipal  cor- 
poration has  been  rendered  impossible  by  act  of  the  law,  as,  for  example, 
by  a  subsequent  statute,  the  obligation  is  discharged,  and  no  action  against 
the  corporation  will  lie  thereon.  This  principle  is  well  exemplified  in 
Brown  v.  Mayor,  &c.  of  London,  9  Com.  B.  (N.  S.)  726,  1861.  respecting 
the  liability  of  London  on  bonds  payable  out  of  tolls  and  duties  levied  on 
vessels  navigating  the  Thames.  In  this  country,  however,  it  is  to  be  re- 
membered that  the  legislative  power,  as  respects  creditors,  is  restrained  by 
the  provision  of  the  Federal  Constitution  that  no  state  shall  pass  any  act 
impairing  the  obligation  of  contracts. 

1  Gilman  v.  Sheboygan,  2  Black,  510,  1862;  Muscatine'  v.  Railroad  Com- 
pany, 1  Dillon  C.  C.  536. 

As  against  a  municipal  corporation,  the  legislature  may,  it  has  been  re- 
cently decided  by  the  Supreme  Court  of  Missouri,  repeal  its  powers  to  levy 
and  collect  wharfage,  although  the  proceeds  of  the  public  wharf  had  been 
pledged  by  the  corporation,  under  legislative  authority,  as  a  fund  in  connec- 
tion with  other  revenues  for  the  payment  of  bonds  issued  for  money  bor- 
rowed by  the  corporation  to  maintain  and  improve  the  wharf.  After  the 
issue  of  such  bonds,  which  were  outstanding,  and  after  the  passage  of  a 
subsequent  act  repealing  all  acts  which  authorized  the  municipality  to  col- 
lect wharfage,  it  sued  the  defendant  for  refusing  to  pay  wharfage,  on  the 
ground  that  the  repealing  act  was  unconstitutional;  but  the  Supreme  Court, 
assimilating  the  case  to  that  of  Gilman  v.  Sheboygan,  2  Black,  510,  and 
distinguishing  it  from  Van  Hoffman  v.  Quincy,  4  Wall.  535,  held  that  the 
city  could  not  recover.  The  language  of  the  judge  delivering  the  opinion 
would  seem  to  imply  that  the  repealing  act  would  not  be  invalid  as  to 
creditors  unless  other  funds  should  prove  insufficient;  but  it  should  be 
observed  that  this  was  not  a  point  adjudged  in  the  case.  St.  Louis  t>. 
Shields,  Supreme  Court  of  Missouri,  March,  1873. 

3  Aspinwall  v.  County  of  Jo  Daviess,  22  How.  364,  1859.  If  not  indeed 
at  any  time  before  it  is  paid  for.  People  v.  Coon.  25  Cal.  635 ;  UnioD 
Pacific  R.  R.  Co.  v.  Davis  County,  6  Kansas,  256,  1870;  post,  sec.  696,  note. 


l58  MUNICIPAL     CORPORATIONS.  [Ch.  IV 

§  43.  The  legislature,  as  the  trustee  for  the  general 
public,  has  full  control  over  the  public  property  and  the  sub- 
ordinate rights  of  municipal  corporations.  Accordingly,  it 
may  authorize  a  railroad  company  to  occupy  the  streets  m 
a  city  without  its  consent  and  without  payment,  but  it  could 
not,  probably,  authorize  the  taking  of  the  private  property 
of  a  city  by  a  railroad  company,  except  for  public  purposes, 
and  upon  compensation  being  made.1  It  may  authorize 
corporations  to  make  contracts,  but  it  is  more  doubtful 
whether  it  can  make  contracts  for  them,  since  the  essence 
of  a  contract  consists  in  the  agreement  of  the  parties.  And 
on  this  view  it  has  been  held,  in  Vermont,  that  the  legis- 
lature cannot,  without  the  consent  of  a  municipal  corpora 
tion,  appoint  an  agent  for  it,  and  authorize  him,  as  such 
agent,  to  purchase  property  and  bind  the  corporation  to  pay 
for  it.'  So  the  supreme  court  of  Illinois  has,  very  recently, 
decided  that  the  legislature,  under  peculiar  provisions  in 
the  constitution  of  that  state,  has  no  power  to  compel  a  city 

1  Darlington  v.  Mayor,  &c,  31  N.  Y.  164,  1865;  Reynolds  a.  Stark  County, 
5  Ohio,  204;  5  Ohio  St.  113;  Clinton  v.  Railroad  Company,  24  Iowa,  455, 
1868;  Louisville  ».  University  of  Louisville,  15  B.  Mon.  642,  1855.  See, 
further,  chapters  on  Streets  and  on  Dedication,  post;  People  v.  Kerr,  27 
N.  Y.  188;  Mercer  v.  Railroad  Company,  36  Pa.  St.  99;  Mayor,  &c.  ». 
Hopkins,  13  La.  An.  326;  Reading  v.  Commonwealth,  11  Pa.  St.  196;  pest, 
sec.  555. 

*  Atkins  v.  Randolph,  31  Vt.  226,  1858.  The  case  was  this :  Plaintiff 
sued  the  town  of  Randolph  in  assumpsit  for  liquor  sold  to  an  " agent" 
appointed  by  the  county  commissioners  to  purchase  liquors  (under  the  act 
of  1852,  ilto  prevent  the  traffic  in  intoxicating  liquors"),  at  the  expense  of 
the  town  for  which  he  was  appointed.  The  town  never  gave  any  assent, 
express  or  implied,  to  this  appointment;  nor  did  it  receive  any  benefit  from 
the  sale  of  the  liquors,  or  have  any  knowledge  that  the  agent  was  purchas- 
ing liquors  on  its  credit.  The  court  held  the  act  of  1852  unconstitutional, 
and  that  the  plaintiffs  could  not  recover.  The  decision  was  put  mainly  upon 
the  grouud  that  the  legislature  could  not  authorize  a  binding  contract  to  be 
made  creating  a  debt  against  a  public  corporation  without  its  consent. 
Bennett,  J.,  dissented,  not  on  the  ground  that  the  corporation  was  bound 
by  force  of  any  contract,  but  because  the  act  of  1852  imposed  a  duty  upon 
the  towns,  as  municipal  corporations,  to  pay  for  the  liquors,  and  this  for 
public  purposes,  and  to  carry  out  a  police  regulation.  Chief  Justice  Denio 
criticises  this  case,  and  considers  it  as  "standing  upon  no  principle"— 
Darlington  v.  Mayor,  &c.  of  New  York,  31  N.  Y.  164,  205,  1865.  And  see 
Philadelphia  v.  Field,  58  Pa.  St.  320,  1868. 


Ch.  IV.]  EXTENT     OF    LEGISLATIVE     CONTROL.  159 

to  incur  a  debt  against  its  will.1  Questions  of  this  kind 
depend,  for  correct  solution,  not  only  upon  the  constitu- 
tional provisions  in  the  particular  state,  bat  also,  we  think, 
upon  the  nature  of  the  debt  which  the  municipality  is 
ordered  to  create.  If  there  is  no  special  limitation  in  the 
constitution,  and  the  debt  is  one  to  be  incurred  in  the  dis- 
charge of  a  public  duty,  which  it  is  proper  for  the  legislature 
to  impose  upon  the  municipality,  it  can  constitute  no  ob- 
jection to  the  validity  of  the  act,  that  the  debt  or  liability  is 
to  be  created  without  its  consent.  Thus,  in  the  absence  of 
constitutional  restriction,  it  has  been  decided,  and  the  de- 
cision is  doubtless  correct,  that  it  is  competent  for  the  legis- 
lature to  direct  a  municipal  corporation  to  build  a  bridge 
over  a  navigable,  watercourse  within  its  limits,  or  the  state 
may  appoint  agents  of  its  own  to  build  it,  and  empower 
them  to  create  a  loan  to  pay  for  the  structure,  payable  by 
the  corporation.2 

1  People  v.  Chicago  (Lincoln  Park  Case),  51  111.  17,  1869 ;  People  o.  Salo- 
mon (South  Park  Case),  lb.  37;  Howard  v.  Drainage  Company,  lb.  130. 
Though  the  reasoning  of  the  court  is  general,  yet  the  point  decided,  that 
the  city  could  not  be  compelled  to  contract  a  debt  against  its  consent,  was 
influenced  by,  if  it  does  not  rest  upon,  a  constitutional  provision  Cart.  IX. 
see.  5),  which  was  construed  to  restrict  the  legislature  from  granting  the 
right  of  local  or  corporate  taxation  to  any  other  than  the  corporate  authori- 
ties of  the  municipality  or  district  to  be  taxed.  Compare  Darlington 
v.  Mayor,  &c.  of  New  York,  31  N.  Y.  164.  See  Dunnovan  v.  Green,  57 
111.  30;  Sinton  v.  Ashbury,  41  Cal.  525,  1871. 

The  general  propositions  in  the  text  as  to  the  restrictions  on  legislative 
power  over  municipal  corporations  will  be  found  to  be  sustained  by  the 
following  cases:  Atkins  v.  Randolph,  31  Vt.  226,  1858;  White  v.  Fuller,  39 
Vt.  193;  Louisville  v.  The  University,  15  B.  Mon.  642;  Western  Savings 
Fund  Society^.  Philadelphia,  31  Pa.  St.  175, 185  ;  Montpelier  v.  East  Mont- 
pelier,  29  Vt.  12;  Poultney  v.  Wells,  1  Aik.  (Vt.)  180;  Trustees  v.  Winston, 
5  Stew.  &  Port.  (Ala.)  17;  Norris  v.  Trustees  Abingdon  Academy,  7  Gill  & 
Johns.  (Md.)  7 ;  Regents  of  University  v.  Williams,  9  lb.  365 ;  Trustees  of 
Academy  v.  Aberdeen,  13  Sm.  &  Mar.  (Miss.)  645 ;  Brunswick  v.  Litchfield, 
2  Maine  (2  Greenl.),  28,  32. 

9  Philadelphia  v.  Field,  58  Pa.  St.  320,  1868,  approving  Thomas  v.  Le- 
land,  24  Wend.  65 ;  supra,  sec.  30,  note,  and  cases  cited.  United  States  v. 
B.  &  O.  R.  R.  Co.,  U.  S.  Sup.  Court,  December  term,  1872;  post,  sec.  615a; 
Carter  v.  Bridge  Proprietors,  104  Mass.  236,  1870.  But  the  legislature 
would  not,  of  course,  possess  such  extensive  powers  over  a  private  corpora- 
tion.    Erie  v.  Canal,  59  Pa   St.  174. 


160  MUNICIPAL    CORPORATIONS.  [Ch.  IV. 

§  44.  The  fact  that  a  claim  against  a  municipal  or  public 
corporation  is  not  such  an  one  as  the  law  recognizes  as  of 
legal  obligation,  has  been  decided  to  form  no  constitutional 
objection  to  the  validity  of  a  law  imposing  a  tax  and  direct- 
ing its  payment ;'   but  the  validity  of  legislation  of  this 

1  Guilford  v.  Supervisors,  &c,  13  N.  Y.  (3  Kern.)  143,  1855.  This  case 
holds  the  following  propositions:  1.  That  the  legislature  has  power  to  levy 
a  tax  upon  the  taxable  property  of  a  town,  and  appropriate  the  same  to  the 
payment  of  a  claim  made  by  an  individual  against  the  town.  2.  That  it  i8 
not  a  valid  objection  to  the  exercise  of  such  power  that  the  claim,  to  satisfy 
which  ths  tax  is  levied,  is  not  recoverable  by  action  against  the  town.  3. 
That  it  does  not  alter  the  case  that  the  claim  has  been  rejected  by  the 
voters  of  the  town,  when  submitted  to  them  at  a  town  meeting,  under  an 
act  of  the  legislature  authorizing  such  submission,  and  declaring  that  their 
decision  should  be  final  and  conclusive. 

This  case  has  recently  been  approved,  arguendo,  by  the  Supreme  Court  ot 
the  United  States.  The  United  States  v.  Baltimore  &  Ohio  Railroad  Co., 
December  term,  1872. 

On  the   contrary,   the  same  case  has  been  lately  disapproved  by  the 
Supreme  Court  of  Wisconsin,  in  the  State  v.  Tappan,  29  Wis.  664J  1872,  and 
an  act  of  the  legislature  of  Wisconsin,  similar  in  its  nature  and  principles 
to  that  involved  in  Guilford  v.  Supervisors,  supra,  was  held  unconstitutional. 
The  opinion  of  Lyon,  J.,  evinces  great  care  in  its  preparation,  but  it  has 
failed  to  satisfy  us,  that,  in  the  absence  of  special  constitutional  restraints, 
the  extent  of  the  legislative  power  of  taxation  depends  upon  the  consent  of 
the  municipality  or  the  people  therein,  or  that  the  special  act  before  the 
court  exceeded  the  rightful  power  of  the  legislature.     The  principle  has 
been  recently  reaffirmed,  in  Massachusetts,  that  the  discretionary  power  of 
the  legislature  in  the  distribution  of  public  burdens  embraces  the  power  to 
authorize  an  assessment  on  one  district  for  part  of  the  expense  of  repairing 
a  portion  of  a  bridge  in  another.      Carter  v.  Bridge  Proprietors,  104  Mass. 
236,  1870;  post,  sec.  588.  See  Mr.  Sedgwick's  opinion  of  this  legislation, 
Const,  and  St.  Law,  313,  314.      The  principle  of  Guilford  v.  Supervisors 
was  applied  in  Brewster  p.  Syracuse,  19  N.  Y.  116,  1859,  where   it  was 
decided  by  all   of  the  judges   of  the   court  of  appeals   that   the   legis- 
lature has  the  power  to  authorize  the  levy  of  a  tax  for  the  purpose  of 
paying  to  one  who  has  constructed   a   municipal   improvement   (a   street 
sewer)  an  addition  to  the.  contract  price,  which  the  corporation  was  for- 
bidden to  pay  by  its  charter.     The  court  did  not  consider  that  there  was 
1    any  contract  in  the  case,  and  sustained  the  legislation  on  the  ground  that 
it  was  warranted  by  the   taxing  power,  which,  in   that  state,  was  not 
restrained,  thus  leaving  it  in  the  discretion  of  the  legislature  to  recognize 
and  direct  the  payment  of  claims  founded  in  equity  and  justice,  or  in  grati- 
tude or  charity.     People  v.  Mayor,  &c.  of  Brooklyn,  4  Comst.  419.    And  see 
Thomas  v.  Leland,  24  Wend.  65,  1840;  Shelby  Co.  v.  Railroad  Co.,  5  Bush 
(Ky.)  225;  Philadelphia  v.  Field,  58  Pa.  St.  320,  1868.     This  seems  to  be 
carrying  the  doctrine  of  the  control  of  the  legislature  over  public  corpora- 


Ch.  IV.]  EXTENT     OF     LEGISLATIVE     CONTROL.  IQI 

character,  if  it  interferes  with  what  has  been  called  ikeprivate 
contracts  of  such  corporations,  must  be  sustained  on  the 
ground  that  such  contracts,  so  far  as  the  corporations  are 
concerned,  are  under  the  absolute  control  of  the  legislature, 
and  not  within  the  protection  of  the  national  constitution. 
The  cases  on  this  subject,  when  carefully  examined,  go  no 
further,  probably,  than  to  assert  the  doctrine  that  it  is  com- 
petent for  the  legislature  to  compel  municipal  corporations 
to  recognize  and  pay  debts  not  binding  in  law,  and  which, 
for  technical  reasons,  could  not  be  enforced  in  equity,  but 
which,  nevertheless,  are  just  and  equitable  in  their  character, 
and  involve  a  moral  obligation.1  To  this  extent  and  with 
this  limitation,  the  doctrine  seems  unobjectionable  in  prin- 
ciple, although  it  asserts  a  measure  of  control  over  munici- 
palities, in  respect  of  their  duties  and  liabilities,  which  does 
not  exist  as  to  private  corporations  and  individuals. 

§  45.  Accordingly,  it  has  been  decided  recently,  in 
Maryland,  that,  as  against  the  abutters,  the  legislature 
could  not  ratify  an  assessment  for  a  local  improvement  in 
front  of  their  property,  and  which  had  been  adjudged  to  be 

tions  to  its  extreme  limit.  See  Mr.  Justice  Cooley's  views,  Const.  Lim.  380, 
491,  notes.  The  Supreme  Court  of  California  has  followed  and  approved 
Guilford  v.  Supervisors.  Blanding  v.  Burr,  13  Cal.  343,  1859.  North  Mo. 
R.  R.  Co.  v.  Maguire,  49  Mo.  490,  500,  1872.  Under  special  provisions  of 
Michigan  constitution,  see  People  v.  Onandaga,  16  Mich.  254.  Where  one 
county  is  under  a  moral  obligation  to  reimburse  another  county  for  certain 
expenses,  the  legislature  may  give  this  a  legal  effect  by  a  subsequent  act. 
Lycoming  v.  Union,  15  Pa.  St.  166,  1850.  Rights  of  trial  by  jury  may  be 
denied  by  the  legislature  to  municipal  corporations,  these  being  mere 
creatures  of  its  policy,  with  such  rights  only  as  it  sees  proper  to  confer. 
Borough  of  Dunsmore's  Appeal,  52  Pa.  St.  374 ;  but  see,  supra,  sec.  39, 
note. 

1  Blanding  v.  Burr,  13  Cal.  343,  1853;  Lycoming  v.  Union,  15  Pa.  St. 
166;  Guilford  v.  Supervisors,  13  N.  Y.  144,  1855;  Brewster  v.  Syracuse,  19 
N.  Y.  116,  1859;  Thomas  v.  Leland.  24  Wend.  65,  1840;  Hasbrouck  v.  Mil- 
waukee, 21  Wis.  217,  1866;  Smith  v.  Morse,  2  Cal.  524;  Grogan  v.  San 
Francisco,  18  Cal.  590 ;  Sinton  v.  Ashbury,  41  Cal.  525,  1871. 

The  legislature,  in  favor  of  a  county  collecting  officer,  who  has  settled 
and  paid  a  claim  against  him,  may  pass  an  act  authorizing  the  settlement  to 
be  opened  and  equitably  adjusted,  and  such  an  act  is  an  implied  direction 
that  the  rule  of  law,  as  to  voluntary  payments,  shall  not  apply.  Burns  t>. 
Clarion  Co.,  62  Pa.  St.  422,  1869. 
11 


1G2  MUNICIPAL     CORPORATIONS.  [Ch.  IV. 

void,  and  compel  them  to  pay  for  the  same.1  In  the  case 
just  mentioned,  the  legislature,  in  an  act  relating  to  the 
grading  and  paving  of  an  avenue  in  the  city  of  Baltimore, 
among  other  things,  required,  as  preliminary  to  proceedings 
thereunder,  that  the  mayor  and  council  of  the  city  should 
determine  the  proposed  work  to  be  consistent  with  the  pub- 
lic good.  An  application,  by  property  owners,  for  the  im- 
provement, was  made  to  the  city  commissioners  instead  of 
the  mayor  and  council,  and  the  commissioners  determined 
to  grade  the  avenue,  awarded  the  contract,  and  the  con- 
tractor did  the  work  at  the  cost  of  over  $100,000.  The 
abutters  instituted  no  proceeding  to  stop  the  work,  and 
after  it  was  completed  the  city  passed  an  ordinance  ratifying 
the  contract  to  grade,  and  all  the  acts  of  the  officers  of  the 
city  in  relation  to  the  grading  of  the  avenue.  An  assess- 
ment being  made  upon  their  property,  to  pay  the  expense 
of  the  grading,  they  filed  a  bill  for  an  injunction  and  relief, 
and  it  was  judicially  determined  that  the  proceedings  of  the 
city  commissioners  were  coram  non  judice  and  void,  and 
that. they  could  not  be  ratified  by  ordinance.2  After  this 
judicial  determination,  the  legislature  passed  an  act  direct- 
ing the  city  to  pay  the  contractors  for  the  work  done  by 
them  and  accepted  by  the  city,  to  borrow  the  money  for  the 
purpose,  and  levy  a  tax  for  its  payment,  which  the  city  did. 
But  at  the  same  session,  the  legislature,  to  reimburse  the 
city  treasury,  empowered  the  city  to  collect  from  the 
abutters  on  the  avenue  graded  the  amounts  which  had  been 
assessed  and  ascertained  by  the  city  commissioners,  and 
this  last  act  was  held  by  the  Court  of  Appeals  to  be  void, 
because  it  was  an  assumption  of  judicial  power  by  the  legis- 
lature, and,  in  effect,  a  legislative  reversal  of  the  former 
judgment  of  the  court. 

§  46.  In  general,  however,  the  legislature  may,  by  sub- 
sequent act,  validate  and  confirm  previous  acts  of  the 
corporation  otherwise  invalid.3  Merely  because  such  legis- 
lation, in   matters  not  relating  to  crimes,  is  retrospective, 

1  Baltimore  v.  Horn,  26  Md.  194,  1866. 

5  Baltimore  v.  Porter,  18  Md.  284,  1861.     See  infra,  sec.  652. 
8  Bridgeport  v.  Railroad  Co.,  15  Conn.  475,  1843,  in  which  it  was  held, 
that  the  legislature  might  validate  prior  subscription  of  city  to  stock  of 


Ch.  IV.]  EXTENT     OF    LEGISLATIVE     CONTROL.  163 

does  not  make  it  void.  If  in  addition  to  its  being  retrospective, 
it  unjustly  impairs  or  abrogates  vested  rights,  and,  without 
reasonable  cause,  imposes  upon  third  persons  new  duties  in 
respect  to  past  transactions,  it  will  be  void  because  in  con- 
flict with  the  constitution.1 

§  47.  While  it  is  undeniable  that  the  legislature  has 
full  control  over  public  corporations,  and  over  the  funds 
which  belong  to  them  as  such,  and  held  for  strictly  corpo- 
rate purposes  ;  yet  where,  by  authority  of  law,  such  corpo- 
rations hold  property  or  funds  in  trust  for  specific  uses, 
it  is  left  in  doubt  by  the  cases  how  far  the  legislature  can, 
unless  the  uses  be  strictly  public  or  charitable,  interfere 
with  or  control  such  trust  property  or  funds.  In  a  very  re- 
cent case  of  great  interest,  the  Supreme  Court  of  Pennsyl- 
vania decided,  that  it  was  within  the  power  of  the  legisla- 
ture to  deprive  the  city  of  Philadelphia  of  the  right  to 
administer  charitable  trusts  under  the  will  of  Mr.  Grirard 
and  others,  which  had  been  granted  to  and  accepted  by  it, 
and  to  confer  the  administration  of  these  trusts  upon  a  sepa- 
rate body,  called  "  Directors  of  City  Trusts,"  appointed  by 

railroad  company.  S.  P.  Winn  v.  Macon,  21  Geo.  275,  1857;  McMillen  ». 
Boyles,  6  Iowa,  304;  Id.  391;  New  Orleans  v.  Poutz,  14  La.  An.  853; 
Bissell  v.  Jeffersonville,  24  How.  287,  295,  1860;  Achison  v.  Butcher,  3 
Kansas,  104,  1865;  Frederick  ».  Augusta,  5  Geo.  561;  Truchelut  v.  City 
Council,  1  Nott  &  McCord  (South  Car.)  227 ;  Cooley  Const.  Lim.  371,  379. 
Post,  sees.  352,  424,  652. 

1  Bridgeport  v.  R.  R.  Co.,  15  Conn.  475,  497,  and  cases  cited  per  Church, 
J.  Laws  passed  to  remedy  defective  execution  of  powers  of  public  corpora- 
tions, or  their  officers,  are  valid,  though  retrospective  in  their  operation, 
unless  they  contravene  some  provision  of  the  state  constitution.  State  v. 
Newark,  3  Dutch.  (N.  J.)  187,  1858 ;  Bissell  v.  Jeffersonville,  24  How.  287, 
295,  where  such  curative  acts  are  said  to  be  valid  when  contracts  are  not  im- 
paired, or  the  rights  of  third  persons  injuriously  affected. 

It  is  competent  for  the  legislature  to  validate  a  city  ordinance  which  had 
become  null  and  void  for  want  of  being  recorded,  and  to  provide  that  the 
omission  to  record  shall  not  impair  the  lien  of  the  assessments  against  the 
lot  owners.  Schenley  v.  Commonwealth,  36  Pa.  St.  29,  1859.  The  legisla- 
ture may  ratify,  and  thereby  make  binding  an  unauthorized  municij>nl 
subscription  to  the  stock  of  an  incorporated  theatre  company.  Municipality 
v.  Theatre  Co.,  2  Rob.  (La.)  209,  1842;  but,  quere,  whether,  if  the  legisla- 
ture had  the  power,  the  act  in  this  case  was  properly  held  to  be  a  ratifica 
tion      See,  further,  chapter  on  Contracts,  post,  sec.  424. 


164  MUNICIPAL     CORPORATIONS.  [Ch.  rV. 

the  judges  of  the  Supreme  Court  and  other  judges  named 
in  the  act.  It  is  to  be  remarked,  however,  that  the  legisla- 
ture did  not  attempt  to  change  or  pervert  the  trusts  them- 
selves.1 Certain  it  is,  that  without  legislative  authority,  a 
municipal  corporation  holding  the  legal  title  to  property  in 
trust,  cannot  use  the  funds  derived  from  such  property  for 
corporate  purposes,  or,  indeed,  for  any  except  the  trust 
purposes.1 

1  Philadelphia  v.  Fox,  64  Pa.  St.  169,  1870.    Post,  sec.  437  et  seq. 

9  White  v.  Fuller,  39  Vt.  193;  ante,  sec.  37;  Montpelier  v.  East  Mont- 
pelier  (contest  as  to  trust  property  on  division  of  town),  27  Vt.  (1  Wins.) 
704,  1854;  same  controversy  in  chancery,  29  Vt.  (3  Wms.)  12.  See,  also, 
Trustees,  &c.  v.  Bradbury,  2  Fairf.  (Me.)  118;  Poultney  v.  Wells,  1  Aik. 
(Vt.)  180 ;  Plymouth  v.  Jackson,  15  Pa.  44;  Harrison  v.  Bridgeton,  16 
Mass.  16;  Daniel  v.  Memphis,  11  Humph.  (Tenn.)  582:  Trustees  of  Academy 
e.  Aberdeen,  13  Sm.  &  Mar.  (Miss.)  645,  as  to  which,  quere.  Aberdeen  v. 
Sanderson,  8  lb.  670 ;  Chambers  v.  St.  Louis,  29  Mo.  543 ;  Holland  v.  San 
Francisco,  7  Cal.  361 ;  Girard  v.  Philadelphia,  7  Wall.  1.  See,  post,  chap- 
ters od  Corporate  Property  and  Remedies  Against  Rlegal  Corporate  Acts. 

A  conveyance  was  made  in  1873,  by  the  proprietors  of  the  lands,  to  the 
selectmen  of  North  Yarmouth,  of  "  all  the  flats,  sedge  banks,  and  muscle 
beds  in  said  town,  lying  below  high  water  mark, "  "  for  the  sole  use  and 
benefit  of  the  present  inhabitants,  and  of  all  such  as  may  or  shall  forever 
inhabit  or  dwell  in  said  town,"  &c.  It  was  decided  that  this  property  was 
held  by  the  town  as  a  public  corporation,  subject  to  legislative  control,  in 
trust  for  the  use  of  all  of  the  inhabitants,  and  that  upon  a  division  of  the 
town,  it  was  competent  for  the  legislature  to  provide  that  the  original  town 
should  still  hold  such  property  in  trust  for  the  inhabitants  of  both  towns. 
North  Yarmouth  v.  Skillings,  45  Maine,  133,  1858.     Post,  sec.  127. 

To  another  town  in  Maine,  lands  were  granted  by  Massachusetts  prior 
to  the  separation  of  Maine  therefrom,  for  the  use  of  its  schools.  The  legisla- 
ture, in  1803,  on  the  application  of  the  town,  authorized  the  sale  of  the 
lands,  and  gave  to  certain  designated  trustees  the  right  to  control  the  funds 
raised  by  the  sale  of  the  lands.  This  was  considered  as  constituting  a  con- 
tract, and  it  was  accordingly  held  that  a  subsequent  act  of  the  legislature, 
authorizing  the  town  to  choose  a  new  set  of  trustees,  and  directing  the  first 
trustees  to  deliver  over  the  trust  property,  was.  agreeably  to  the  principles 
settled  in  the  Dartmouth  College  Case,  unconstitutional  and  void.  The 
Trustees,  &c.  v.  Bradbury,  11  Maine,  118,  1834;  Yarmouth  v.  North  Yar- 
mouth, 34  Maine,  411,  1852.  In  this  last  case  the  trustees  of  the  funds 
were  &  private  corporation,  and  not  subject  to  legislative  control.  In  North 
Yarmouth  v.  Skillings,  45  Maine,  133,  1858,  the  trustees  of  the  property  or 
fund  in  question  were  a  public  corporation,  and  subject  to  such  control.  The 
rule  as  to  private  and  public  corporations  is  well  exemplified  in  these  two 
cases.     See,  also,  Norris  v.  Abington  Academy.  7  Gill  &  Johns.  (Md.)  7; 


Ch.  IV.  j  EXTENT    OF     LEGISLATIVE     CONTROL.  166 

Bass  v.  Foutleroy,  11  Texas,  698;  Louisville  v.  University  of  Louisville,  15 
B.  Mon.  642. 

In  the  State  v.  Springfield  Township,  6  Ind.  (Porter)  83,  1854,  it  was 
held,  that  a  law  of  the  state  (act  of  1852),  so  far  as  it  diverted  the  proceeds 
of  the  sale  of  the  sixteenth  section  (granted  by  act  of  Congress  of  April  19, 
1816)  from  the  use  of  schools  in  the  congressional  township  where  the  land 
was  situated,  to  the  use  of  the  school  system  of  the  state  at  large,  was  in 
contravention  of  that  section  of  the  6tate  constitution  (sec.  7,  art.  VIII.) 
which  provides,  that  "All  trust  funds,  held  by  the  state,  shall  remain  in- 
violate, and  be  faithfully  and  exclusively  applied  to  the  purpose  for  which 
the  trust  was  created." 


106  MUNICIPAL     CORPORATIONS.  [Ch.    V. 


CHAPTER  V. 

Municipal  Charters. 

General  Municipal   Powers. — Their   Nature   and  Con- 
struction. 

§  48.  This  chapter  will  treat  of  Municipal  Charters,  and 
the  principles  upon  which  they  are  construed,  and  of  the 
general  nature  of  the  powers  which  they  confer  upon  the 
corporation  or  upon  its  legislative  or  governing  body.  The 
subject  will    be  considered  under  the    following   heads : 

I.  Charters  Defined.  2.  Judicially  Noticed.  3.  Proof  of 
Corporate  Existence.  4.  Repeal  and  Amendment  of  Char- 
ters. 5.  Conflict  between  General  Laws  and  Special  Char- 
ters. 6.  Extent  of  Corporate  Powers,  Limitations  Thereon, 
and  Canons  of  Construction.  7.  Usage  as  affecting  Powers 
and  Their  Interpretation.  8.  Discretionary  Powers.  9. 
Public  Powers  Incapable  of  Delegation.     10.  Or  Surrender. 

II.  Mandatory  and  Discretionary  Powers.  12.  Exemption 
of  Revenues  from  Judicial  Seizure,  and  herein  of  Garnish- 
ment. 

Charters  Defined. 

§  49.  We  have  before  seen  that,  in  this  country,  muni- 
cipal corporations  are  created  by  legislative  act,  either  in 
the  form  of  a  legislative  charter  or  by  general  incorporating 
statutes.1  A  municipal  charter,  granted  by  the  crown  in 
England  is  a  written  instrument,  made  in  the  form  of  letters 
patent,  with  the  great  seal  appended  to  it,  addressed  to  all 
the  subjects,  and  constituting  the  persons  therein  named, 
and  their  successors,  a  body  corporate  for  or  within  the 
place  therein  specified,  and  prescribing  the  powers  and 
duties  of  the  corporation  thereby  created.  But  such  char- 
ters are  inoperative  until  accepted.3    Here,  as  we  have  else- 

1  Ante,  sees.  19,  20. 

•  Ante,  sees.  15,  23.     Outline  of  charter  of  the  middle  ages,  anU,  sec.  6. 


Ch.  v.]  municipal    charters.  167 

where  shown,  the  legislature  creates,  alters,  and,  in  the 
absence  of  constitutional  restriction,  can  destroy,  municipal 
and  public  corporations  at  its  will,  and  it  invests  them  with 
such  powers,  and  requires  of  them  such  duties,  as  it  deems 
most  expedient  for  the  general  good,  and  for  the  benefit  of 
the  particular  locality.1  No  precise  form  of  words  is  neces- 
sary to  create  a  corporation,  and  a  corporation  may  be 
created  by  implication.2 

Charters  Judicially  Noticed. 

§  50.  Courts  will  judicially  notice  the  charter  or  incor- 
porating act  of  a  municipal  corporation  without  being  spe- 
cially pleaded,  not  only  when  it  is  declared  to  be  a  public 
statute,  but  when  it  is  public  or  general  in  its  nature  or 
purposes,  though  there  be  no  express  provision  to  that 
effect.  But  the  acts,  votes,  and  ordinances  of  the  corpora- 
tion are  not  public  matters,  and  must  be  pleaded.3 

Proof  of  Corporate  Existence. —  User. — Legislative   Re- 
cognition. 

§  51.  The  primary  evidence  of  a  special  charter  or  act  of 
incorporation,  in  this  country,  is  the  original,  or  an  authen- 
ticated copy,  or  printed  copy,  published  by  authority.  But 
if  primary  evidence  cannot  be  had,  parol  or  secondary  evi- 
dence of  its  existence  is  admissible.4  Thus,  where  a  public 
corporation  had  existed  for  a  long  space  of  time  (in  the  instance 

1  Ante,  sees.  8,  9,  10.  9  Ante,  sees.  21,  22. 

3  Beatty  v.  Knowles,  4  Pet.  (TJ.  S.)  152,  157,  1830;  Aldermen  v.  Finley, 
5  Eng.  (Ark.)  423,  1850;  Fauntleroy  v.  Hannibal,  1  Dillon  C.  C.  118,  1871; 
Prell  v.  McDonald,  7  Kansas.  426,  1871;  "West  v.  Blake,  4  Blackf.  (Ind.) 
234,  1836;  Briggs  v.  Whipple,  7  Vt.  15,  18,  1835;  Case  v.  Mobile,  30  Ala. 
538,  1857;  Clarke  v.  Bank,  5  Eng.  (Ark.^i  516;  State  v.  Mayor,  11  Humph. 
(Tenn.)217,  1850;  see  Vance  v.  Bank,  1  Blackf.  (Ind.)  80,  and  note  (2);  6 
Bac.  Abr.  374,  note;  Young  v.  Bank,  &c,  4  Cranch,  384;  Swails  v.  State, 
4  Ind.  516,  1853;  Portsmouth,  &c.  Co.  v.  Watson,  10  Mass.  91;  Clapp  v. 
Hartford,  35  Conn.  66;  Peoples.  Potter.  35  Cal.  110;  see,  post,  chapter  on 
Ordinances,  sec.  355.  Where  a  public  law  creates  the  mayor  and  aldermen 
an  incorporated  body,  no  averment  or  proof  is  necessary  to  establish  the 
existence  of  the  corporation.     State  v.  Mayor,  11  Humph.  (Tenn.)  217,1850. 

4  Stockbridge  v.  West  Stockbridge,  12  Mass.  400,  1815;  Braintree  v. 
Battles,  6  Vt.  395,  1834    Blackstone  v.  White,  41  Pa.  St.  330. 


IQQ  MUNICIPAL     CORPORATIONS.  [Ch.  V. 

before  the  court  for  forty  y^ars),  the  court  admitted  proof 
of  its  incorporation  by  reputation,  the  original  act  not  being 
found,  and  it  being  probable  that  it  had  been  destroyed  by 
fire.1  So  evidence  that  a  town  has  for  many  years  exercised 
corporate  privileges,  no  charter,  after  search,  being  found,  is 
competent  to  go  to  the  jury  to  establish  that  it  was  duly  in- 
corporated. And  where  there  is  no  direct  or  record  evidence 
that  a  place  has  been  incorporated,  and  it  is  sought  to  show 
the  fact  of  incorporation  from  circumstantial  evidence,  the 
question  is  for  the  jury,  and  not  the  court ;  that  is,  the  jury, 
under  the  circumstances,  determine  whether  there  is  or  is 
not  sufficient  ground  to  presume  a  charter  or  act  of  in- 
corporation,2 or  the  due  establishment  and  existence  of  a 
corporate  district  under  some  general  act.3    So  corporate 

i  Dillingham  v.  Snow,  5  Mass.  547,  1809.  S.  P.  Bassett  v.  Porter,  4  Cush. 
487  1849.  In  view  of  the  defective  manner  in  which  the  records  of  quasi 
corporations— such  as  school  and  road  districts,  and  the  like — are  kept,  the 
courts,  in  the  absence  of  any  statute  requiring  record  evidence,  will  permit 
the  existence  and  organization  ol  the  corporation  to  be  proved  by  reputation 
and  acts,  where  these  facts  do  not  appear  of  record.  Barnes  v.  Barnes,  6 
Vt.  388,  1834;  Londonderry  v.  Andover,  28  II.  416,  1856;  Sherwin  v.  Bug 
bee,  16  II.  439;  Ryder  v.  Railroad  Company,  13  111.  523;  Highland  Turn- 
pike v.  McKean,  10  Johns.  154;  Owings  v.  Speed,  5  Wheat.  420.  See 
chapter  on  Corporate  Records  and  Documents,  post. 

Irregularities  in  the  proceedings  to  organize  a  corporation  are  not  favored 
when  set  up,  long  afterwards,  to  defeat  the  corporate  existence.  Jameson 
t>.  People,  16  111.  257,  1855;  Dunning  v.  Railroad  Company,  2  Ind.  437,  1850; 
Fitch  v.  Pinckard,  4  Scam.  (111.)  76. 

Where  a  corporation  is  created,  and  declared  to  exist  as  such,  by  the 
legislature,  without  condition,  proof  of  organization  or  user  is  not  necessary 
to  enable  them  to  maintain  an  action.  Cahill  v.  Insurance  Company,  2  Doug. 
(Mich.)  124 ;  Fire  Department  v.  Kip,  10  Wend.  266,  1833.  And  see  Proprie- 
tors, &c.  v.  Horton,  6  Hill  (N.  T.)  501;  People  v.  President,  3  Wend.  351; 
Wood  v.  Bank,  9  Cowen,  194,  205.  When  construed  to  be  immediately 
created,  the  omission  to  do  certain  acts  prescribed  to  organize  the  institu- 
tion, was  held  immaterial  as  respects  persons  contracting  with  the  corpora- 
tion. Brouwer  v.  Appleby,  1  Sandf.  153,  1847.  S.  P.  People  v.  President, 
9  Wend.  351.     See,  also,  ante,  sec.  23. 

5  New  Boston  o.  Dumbarton,  15  N.  H.  201,  1844;  Mayor  of  Kingston  t>. 
Horner,  Cowp.  102,  per  Lord  Mansfield. 

"Bassett  v.  Porter,  4  Cush.  487,  1849;  New  Boston  v.  Dumbarton,  12 
N.  H.  409,  412,  1841.  S.  C,  15  N.  H.  201;  Robie  v.  Sedgwick,  35  Barb. 
319,  1861.  The  exercise  of  corporate  powers  by  a  place  for  twenty  years, 
without  objection,  and  with  the  knowledge  and  assent  of  the  legislature, 


Ch.  V.J  MUNICIPAL     CHARTERS.  169 

existence  may  be  inferred,  a  ad  judicially  noticed,  although 
the  incorporating  act  or  charter  cannot  be  found,  if  the  fact 
of  incorporation  is  clearly  recognized  by  subsequent  legisla- 
tion, not  in  contravention  of  any  constitutional  provision 
respecting  the  mode  of  creating  corporations.1 

Repeals  and  Amendments,  and  their  Effect. 

§  52.  The  powers  conferred  upon  municipal  corporations 
may  at  any  time  be  altered  or  repealed  by  the  legislature, 
either  by  a  general  law  operating  upon  the  whole  state,  or, 
in  absence  of  constitutional  restriction,  by  a  special  act.' 
A  charter  may  be  amended,  and  the  name  of  the  place  and 
the  governing  body  may  be  changed,  and  its  boundaries 
altered,   while  in  law  the  corporation  remains  the  same. 

furnishes  conclusive  evidence  of  a  charter,  which  has  been  lost ;  or,  in  other 
words,  of  a  corporation  by  prescription,  which  supposes  a  grant.  Bow  v. 
Allentown,  34  N.  H.  351,  1857.  In  this  case  it  was  also  held  that  an  act  of 
incorporation  subsequently  passed  does  not  raise  any  conclusive  presumption 
that  the  town  was  not  before  incorporated.  Long  use  and  acquiescence  are 
evidence  in  support  of  the  legal  existence  of  a  municipal  corporation. 
People  v.  Farnham,  35  111.  562;  Jameson  v.  People,  16  111.  257,  1855; 
People  v.  Maynard,  15  Mich.  463,  1867.  Long  acquiescence  in  the  proceed- 
ings of  a  school  district  is  presumptive  evidence  of  the  regular  organization 
of  such  district.  Sherwin  v.  Bugbee,  16  Vt.  439,  1844;  Londonderry  v. 
Andover,  28  lb.  416.  "It  is  now  well  settled  in  this  state,  that  the  mere 
fact  of  a  school  district  maintaining  its  existence  and  operation  for  a  great 
number  of  years — say  fifteen — is  sufficient  evidence  of  its  regular  organiza- 
tion. The  same  rule  of  presumjjtion  must  be  applied  to  the  subdivision  of 
the  town  into  districts."     Per  Bedjield,  J.,  in  Sherwin  v.  Bugbee,  supra. 

1  Jameson  v.  People,  16  111.  257,  1855;  Swain  v.  Comstock,  18  Wis.  46:^ 
1864;  People  v.  Farnham,  35  111.  562;  Bow  v.  Allentown,  34  N.  H.  351, 
1857;  Society,  &c.  v.  Pawlet,  4  Pet.  480,  1830;  Railroad  Company  v. 
Chenoa,  43  111.  209;  Virginia  City  v.  Mining  Company,  2  Nev.  86,  1866; 
Railroad  Company  v.  Plumas  County,  37  Cal.  354.     An'e,  sec.  21. 

2  Per  Smith,  J.,  Sloan  v.  State,  8  Blackf.  (Ind.)  361,  1847,  approving 
People  v.  Morris,  13  Wend.  325;  Daniel  v.  Mayor,  &c,  11  Humph.  (Tenn.) 
582;  State  v.  Mayor,  24  Ala.  701,  1854;  Girard  v.  Philadelphia,  7  Wall.  1, 
1868.     Ante,  sec.  24;  sec.  29  et  seq.     The  provisions  of  an  amendatory  act, 

•  reducing  the  number  of  councilmen,  though  the  act  tooK  effect  at  once, 
were  postponed  until  the  next  year,  when  they  could  be  called  into  requisi- 
tion at  the  election — no  earlier  election  being  provided  for — and  inean- 
wnile  the  existing  council  remained  unaffected  by  the  amendment.  Scovili 
v  Cleveland,  1  Ohio  St.  126,  1853.  Same  principle  applied.  Reading  c 
Keppleman,  61  Pa.  St.  233,  1869. 


170  MUNICIPAL     CORPORATIONS.  [Ch.  V. 

The  insertion  in  an  amended  charter  of  the  same  provisions 
that  were  contained  in  the  old  is  not,  unless  such  upon  the 
whole  act  appears  to  have  been  the  intention  of  the  legisla- 
ture, a  repeal  of  the  latter.  The  law  on  this  subject  is 
thus  stated:  "Where  a  statute  does  not,  in  express  terms, 
annul  a  right  or  power  given  to  a  corporation  by  a  former 
act,  but  only  confers  the  same  rights  and  powers  under  a 
new  name,  and  with  additional  powers,  such  subsequent 
act  does  not  annul  the  rights  and  powers  given  under  the 
former  act  and  under  its  former  name,"  there  being  no  ex- 
press repeal.1 

§  53.  A  repeating  clause  in  a  revised  and  amendatory 
charter,  when  a  former  provision  is  included  in  the  re- 
vised act,  does  not,  as  to  such  provision,  interrupt  the  con- 
•  tinuity  of  the  original  act.a  Where  the  original  charter  of 
a  city  prescribed  the  qualifications  required  to  make  a  per- 
son eligible  to  the  office  of  maf  or,  and  contained  a  proviso 
that  a  certain  fact  disqualified,  and  an  amendatory  act,  in 
dealing  in  the  same  subject,  copied  all  of  the  original  act 

1  State,  &c.  v.  Mobile,  24  Ala.  701,  1854;  Girard  v.  Philadelphia,  7 
"Wall.  1,  1868;  Commonwealth  v.  Worcester,  3  Pick.  (Mass.)  474,  1826; 
Grant  on  Corp.  24,  and  cases  cited ;  II.  305.  See  chapter  on  Dissolution, 
post.  "  There  is  no  doctrine  better  settled,"  says  Mr.  Justice  Strong,  "than 
that  a  change  in  the  form  of  government  of  a  community  does  not  ipso 
facto  abrogate  pre-existing  law,  either  written  or  unwritten.  This  is  true 
in  regard  to  what  is  strictly  municipal  law,  even  when  the  change  is  by 
conquest.  The  act  of  assembly  converting  a  borough  into  a  city  did  not, 
therefore,  of  itself,  and  in  the  absence  of  express  provisions  to  that  effect, 
either  repeal  the  former  acts  of  assembly  relative  to  the  borough,  or  annul 
existing  ordinances.  It  was  solely  a  change  in  the  organic  law  for  the 
future,  and  left  unaffected  the  existing  ordinances,  precisely  as  a  change  of 
a  state  constitution  leaves  undisturbed  all  prior  acts  of  assembly."  Trustees 
of  Academy  v.  Erie,  31  Pa.  St.  515,  517,  1858.  As  to  transfer  to  new  or 
reorganized  corporation  of  the  property  and  rights  of  the  old  or  former 
corporation,  see  Girard  v.  Philadelphia,  7  Wall.  1,  1868;  Savannah  v. 
Steamboat  Company,  R.  M.  Charlt.  (Geo.)  342;  Fowler  v.  Alexandria,  8 
Pet.  398,  408;  Municipality  v.  Commissioners,  1  Rob.  (La.)  279.  Transi- 
tion from  town  to  city  organization  does  not  dissolve  the  corporation  or 
extinguish  its  indebtedness.  Olney  v.  Harvey,  50  111.  453,.  1869 ;  Maysville 
v.  Shultz,  3  Dana,  10,  1865;  Frank  v.  San  Francisco,  21  Cal.  668;  post, 
€hapter  VII. 

5  St.  Louis  v.  Alexander,  23  Mo.  483,  1856. 


Ch.  v.]  MUNICIPAL    CHARTERS.  17] 

except  the  proviso,  which  was  omitted,  the  court  held  that 
the  proviso  in  the  original  act  was  not  repealed,  placing 
stress,  however,  upon  the  express  declaration  that  all  parts 
of  the  new  act  inconsistent  with,  or  contrary  to,  the  old  one, 
were  repealed.  There  is,  however,  much  room  to  contend 
that  the  subject  matter  having  been  revised  in  the  amenda- 
tory act  in  the  manner  it  was,  the  legislative  intention  was 
to  repeal,  and  not  to  continue  in  force,  the  proviso.1  A 
genera]  law,  forbidding  the  opening  of  streets  through 
cemeteries,  is  not  repealed  by  a  subsequent  act  extending 
the  limits  of  a  town  and  appointing  commissioners  with 
authority  "to  survey,  lay  out,  &c,  streets  and  alleys,  as 
they  shall  deem  necessary  within  said  limits,"  since  both 
acts  can  stand,  and  repeals  by  implication  are  not  favored.' 
So  a  general  statute  expressly  prohibiting  a  municipal  cor- 
poration from  debarring  citizens  from  selling  at  wholesale 
in  the  city  market  is  not  repealed,  by  implication,  by  a  sub- 
sequent act,  "by  which  the  city  authorities  are  invested  with 
power  to  pass  such  ordinances  as  appear  to  them  necessary 
for  the  security,  welfare,  &c.  of  the  city.3  So,  also,  where  a 
state  law  required  auctioneers  to  take  out  a  state  license, 
and  a  subsequent  charter  to  a  city  gave  it  power  "  to  pro- 
vide for  licensing,  taxing,  and  regulating  auctions,"  &c, 
it  was  held  that  a  license  granted  by  the  city  corporation 
to  an  auctioneer  did  not  relieve  him  of  the  necessity  of  ob- 
taining, also,  a  license  from  the  state  authorities,  the  court 
being  of  opinion  that  both  statutes  should  and  ought  to 
stand,  as  they  were  not  inconsistent.4 

General  Laws  and  Special  Charters. — Conflict. — Con- 
struction. 

§  54.  It  is  a  principle  of  very  extensive  operation,  that 
statutes  of  a  general  nature  do  not  repeal,  by  implication, 
charters  and  special  acts  passed  for  the  benefit  of  particular 

1  State  v.  Merry,  3  Mo.  278,  1833.  Consult  Goodenow  v.  Buttrick,  7 
Mass.  140,  143 ;  King  v.  Grant,  1  Barn.  &  Adol.  104. 

a  Egypt  Street,  2  Grant  (Pa.)  Cas.  455,  1854.  See,  further,  infra,  sec. 
54,  as  to  repeals  by  implication. 

•  Haywood  v.  Savannah,  12  Geo.  404,  1853. 

4  Simpson  v.  Savage,  1  Mo.  359,  1823. 


172  MUNICIPAL     CORPORATIONS.  [Ch.  V 

municipalities  ;'  but  they  do  so  when  this  appears  to  have 
been  the  purpose  of  the  legislature.  If  both  the  general 
and  special  acts  can  stand,  they  will  be  construed  accord- 
ingly. If  one  must  give  way  it  will  depend  upon  the  sup- 
posed intention  of  the  law-maker,  to  be  collected  from  the 
entire  course  of  legislation,  whether  the  charter  is  super- 
seded by  the  general  statute,  or  whether  the  special  charter 
provisions  apply  to  the  municipality,  in  exclusion  of  the 
general  enactments.  So  particular  provisions  of  charters 
should  be  read  and  construed  in  the  light  of  the  whole  in- 
strument, of  all  preceding  charters,  of  the  general  legislation 
of  the  state,  and  of  the  object  of  the  legislature  in  the  erec- 
tion of  municipalities,  as  before  explained.2 

1  Bond  v.  Hiestand,  20  La.  An.  139;  Railroad  Company  v.  Alexandria, 
18  Gratt.  (Va.)  176,  1867;  Hammond  v.  Haines,  25  Md.  541;  Louisville  v. 
McKean,  18  B.  Mon.  9;  Cumberland  v.  Magruder,  34  Md.  381,  1871;  post, 
sees.  89,  107.  Repeals  by  implication  are  not  favored;  and  special  laws 
conferring  particular  rights  upon  municipal  corporations  were  held  not 
to  be  repealed  by  subsequent  statutes,  general  in  their  character.  Ottawa 
v.  County,  12  B.1.  339;  Egypt  Street,  2  Grant  (Pa.)  Cas.  455,  1854;  supra, 
sec.  53.  A  general  statute,  repealing  all  acts  contrary  to  its  provisions, 
held  not  to  repeal  a  clause  in  the  charter  of  a  municipal  corporation  upon 
the  same  subject.     State  v.  Branin  (taxation),  3  Zabr.  (N.  J.)  484,  1852. 

The  principle  that  general  legislation  on  a  particular  subject  must,  in  the 
absence  of  anything  showing  a  different  intent  on  the  part  of  the  legisla- 
ture, give  way  to  inconsistent  special  legislation  on  the  same  subject,  is  recog- 
nized and  applied  in  the  following  cases:  State  v.  Morristown,  33  N.  J. 
Law,  57,  1868;  State  v.  Branin,  3  Zabr.  484;  State  v.  Clark,  1  Dutch.  54; 
State  v.  Jersey  City,  5  lb.  170;  Jersey  City  v.  Railroad  Co.,  20  N.  J.  Eq. 
360;  in  re  Goddard,  16  Pick.  504;  Railroad  Company  v.  Alexandria,  supra. 
In  Bank  v.  Bridges,  1  Vroom  (N.  J.)  112,  and  State  v.  Miller,  lb.  368, 
special  laws  gave  way  to  general  laws,  because  the  legislature  had  annexed 
to  the  latter  a  repealing  clause,  abrogating  all  inconsistent  local  or  special 
acts.  Per  Depue,  J.,  33  N.  J.  57,  60.  See*  Bank  v.  Davis,  1  McCarter  Ch. 
(N  J.)  286:  Clintonville  v.  Keeting,  4  Denio,  341;  Tierney  v.  Dodge,  10 
Minn.  166.  Other  illustrations  will  be  found  in  the  chapters  on  Ordinances 
and  Taxation,  post,  sec.  614. 

5  Alexandria  v.  Alexandria  (taxing  power),  5  Cranch,  2,  1809;  Grant  on 
Corp.  27 ;  Canal  Company  v.  Railroad  Company,  4  Gill  &  Johns.  1 ;  Smith 
v.  Kernochen,  7  How.  198;  Janesville  v.  Markoe,  18  Wis.  350;  ante,  sees. 
9,  10,  12.  Acts  in pa> i  materia  should  be  construed  together;  and  on  this 
principle,  the  definition  of  the  word  "  owner,"  in  a  subsequent  paving  act, 
was  considered  as  proper  to  be  adverted  to,  and  as  applicable  to  the  same 
word  in  prior  acts  on  the  same  subject.  Holland  v.  Baltimore,  11  Md.  186. 
1857. 


Cn.  V.]  MUNICIPAL     CHARTERS.  173 


Extent  of  Power— Limitation — Canons  of  Construction. 

§  55.  It  is  a  general  and  undisputed  proposition  of  law 
that  a  municipal  corporation  possesses,  and  can  exercise, 
the  following  powers,  and  no  others  :  First,  those  granted 
in  express  words  ;  second,  those  necessarily  or fairly  im- 
plied in,  or  incident  to  the  powers  expressly  granted  ;  third, 
those  essential  to  the  declared  objects  and  purposes  of  the 
corporation — not  simply  convenient,  but  indispensable. 
Any  fair,  reasonable  doubt  concerning  the  existence  of 
power  is  resolved  by  the- courts  against  the  corporation,  and 
the  power  is  denied.  Of  every  municipal  corporation  ,the 
charter  or  statute  by  which  it  is  created  is  its  organic  act. 
Neither  the  corporation,  nor  its  officers,  can  do  any  act,  or 
make  any  contract,  or  incur  any  liability,  not  authorized 
thereby.  All  acts  beyond  the  scope  of  the  powers  granted 
are  void.  Much  less  can  any  power  be  exercised,  or  any 
act  done,  which  is  forbidden  by  charter  or  statute.  These 
principles  are  of  transcendent  importance,  and  lie  at  the 
foundation  of  the  law  of  municipal  corporations.  Their 
reasonableness,  their  necessity,  and  their  salutary  character 
have  been  often  vindicated,  but  never  more  forcibly  than  by 
the  late  learned  Chief  Justice  Shaw,  who,  speaking  of 
municipal  and  public  corporations,  says:  "They  can  ex- 
ercise no  powers  but  those  which  are  conferred  upon  them 
by  the  act  by  which  they  are  constituted,  or  such  as  are 
necessary  to  the  exercise  of  their  corporate  powers,  the  per- 
formance of  their  corporate  duties,  and  the  accomplishment 
of  the  purposes  of  their  association.  This  principle  is 
derived  from  the  nature  of  corporations,  the  mode  in  which 
they  are  organized,  and  in  which  their  affairs  must  be  con- 
ducted. In  aggregate  corporations,  as  a  general  rule,  the 
act  and  will  of  a  majority  is  deemed  in  law  the  act  and  will 
of  the  whole — as  the  act  of  the  corporate  body.  The  conse- 
quence is,  that  a  minority  must  be  bound  not  only  without, 
but  against,  their  consent.  Such  an  obligation  may  extend 
to  every  onerous  duty,  to  pay  money  to  an  unlimited 
amount,  to  perform  services,  to  surrender  lands,  and  the 
like.  It  is  obvious,  therefore,  that  if  this  liability  were  to 
extend  to  unlimited  and  indefinite  objects,  the  citizen,  bv 


17-1  MUNICIPAL     CORPORATIONS.  [Ch.  V 

being  a  member  of  a  corporation,  might  be  deprived  of  Ills 
most  valuable  personal  rights  and  liberties.  The  security 
against  this  danger  is  in  a  steady  adherence  to  the  principle 
stated,  viz  :  that  corporations  can  only  exercise  their 
powers  over  their  respective  members,  for  the  accomplish- 
ment of  limited  and  defined  objects.  And  if  this  principle 
is  important,  as  a  general  rule  of  social  right  and  municipal 
law.  it  is  of  the  highest  importance  in  these  states,  where 
corporations  have  been  extended  and  multiplied  so  as  to 
embrace  almost  every  object  of  human  concern."  ' 

1  Per  Share,  C.  J.,  in  Spaulding  v.  Lowell,  23  Pick.  71,  74,  1839;  Bangs  v. 
Snow,  1  Mass.  181;  Stetson  v.  Kernpton,  13  Mass.  272;  Willard  «.  Newbury- 
port,  12  Pick.  227;  Keyes  v.  Westford,  17  Pick.  273,  279;  Comw.  v.  Turner, 
1  Cash.  493,  495,  1848;  Cooley  v.  Granville,  10  Cush.  57,  1852;  Merriam  v. 
Moody,  25  Iowa,  163,  1868;  Minturn  v.  Larue,  23  How.  435;  Lafayette  v. 
Cox,  5  Ind.  (Port.)  38,  1854;  Paine  v.  Spratley,  5  Kansas,  525;  Vincent  v. 
Nantucket,  12  Cush.  103,  105;  Clark  v.  Davenport,  14  Iowa,  494;  Mays  v. 
Cincinnati,  1  Ohio  St.  268;  Gallia  Co.  v.  Holcomb,  7  Ohio,  part  I.  232; 
Comrurs.  x.  Mighels,  7  Ohio  St.  109;  Fitch  v.  Pinckard  (taxing  power;,  4 
Scam.  (111.)  78 ;  Caldwell  v.  Alton  (market  ordinance),  33  111.  416 ;  Trustees, 
&c.  v.  McConnel,  12  111.  140;  Louisiana  State  Bank  v.  New  Orleans  Nav. 
Co.,  3  La.  An.  294;  State  v.  Mayor,  &c.  (market  house  case),  5  Port.  (Ala.) 
279;  Head  v.  Ins.  Co.,  2Cranch,  168;  De  Russey  v.  Davis  (sale  of  ferry  lease), 
13  La.  An.  468;  People  v.  Bank,  &c,  1  Doug.  (Mich.)  282;  City  Council  v. 
Plank  Road  Co.,  31  Ala.  76;  State  v.  Mayor,  5  Port.  (Ala.)  279;  Ex  parte 
Burnett,  30  Ala.  461,  and  cases  cited;  Le  Couteleux  v.  Buffalo,  33  N.  Y. 
333;  People  v.  Railroad  Co.,  12  Mich.  387. 

"  The  powers  of  all  corporations  are  limited  by  the  grants  in  their  char- 
ters, and  cannot  extend  beyond  them. "  Per  Breese,  J.,  Petersburg  v.  Metz- 
ger,  21  111.  205.  "  Corporations  have  only  such  rights  and  powers  as  are 
expressly  granted  to  them,  or  as  are  necessary  to  carry  into  effect  the  rights 
and  powers  so  granted."  Per  Starrs,  J.,  in  New  London  v.  Brainard  (illegal 
appropriation  of  money  to  celebrate  4th  of  July),  22  Conn.  552,  1853,  ap- 
proving Stetson  o.  Kernpton,  13  Mass.  272;  Hodge  v.  Buffalo,  2  Denio,  110, 
ante,  p.  104,  sec.  12.  "In  this  country,  all  corporations,  whether  public  or 
private,  derive  their  powers  from  legislative  grant,  and  can  do  no  act  for 
which  authority  is  not  expressly  given,  or  may  not  be  reasonably  inferred. 
But  if  we  were  to  say  that  they  can  do  nothing  for  which  a  warrant  could 
not  be  found  in  the  language  of  their  charters,  we  should  deny  them,  in 
some  cases,  the  power  of  self-preservation,  as  well  as  many  of  the  means 
necessary  to  effect  the  essential  objects  of  their  incorporation.  And.  there- 
fore, it  has  long  been  an  established  principle  in  the  law  of  corporations, 
that  they  may  exercise  all  the  powers  within  the  fair  intent  and  purpose  of 
their  creation  which  are  reasonably  proper  to  give  effect  to  powers  expressly 
granted.  In  doing  this,  they  must  [unless  restricted  in  this  respect,]  have 
a  choice  of  means  adapted  to  ends,  and  are  not  to  be  confined  to  any  one 


Ch.  v.]  municipal   charters.  175 

These  general  principles  of  lav  are  indisputably  settled, 
but  difficulty  is  often  experienced  in  their  application,  on 

mode  of  operation."  Per  Church,  J.,  in  Bridgeport  v.  Railroad  Co.,  15  Conn. 
475,  501,  1843.  The  incidental  powers  of  a  municipal  corporation  must  be 
germane  to  the  purposes  for  which  the  corporation  was  created.  Mayor  v. 
Yuille,  3 Ala.  137  (license  to  bakers);  Harris  v.  Intendant,  28 lb.  577  (retail- 
ing liquors);  Intendant  v.  Chandler,  6  lb.  899  (retailing  liquors). 

Courts  adopt  a  strict,  rather  than  liberal,  construction  of  powers:  "  It  is  a 
well  settled  rule  of  construction  of  grants  by  the  legislature  to  corporations, 
whether p*Mic  or  private,  that  only  such  powers  and  rights  can  be  exercised 
under  them  as  are  clearly  comprehended  within  the  words  of  the  act.  or 
derived  therefrom  by  necessary  implication,  regard  being  had  to  the  objects 
of  the  grant.  Any  ambiguity  or  doubt  arising  out  of  the  terms  used  by  the 
legislature  must  be  resolved  in  favor  of  the  public.  This  principle  has  been 
so  often  applied  in  the  construction  of  corporate  powers,  that  we  need  not 
stop  to  refer  to  authorities."  Per  Nelson,  J.,  in  Minturn  v.  Larue,  23  How. 
(U.  S.)  435,  436,  1859,  construing  municipal  charter  as  to  ferry  rights  of 
corporation  thereunder.  In  subsequent  cases,  the  Supreme  Court  has  said 
that  a  municipal  corporation  "  can  exercise  no  power  which  is  not,  in  express 
terms,  or  by  fair  implication,  conferred  upon  it."  Thompson  ■».  Lee  Co.,  3 
Wall.  320 ;  Thomas  v.  Richmond,  United  States  Supreme  Court,  December 
Term,  1871,  12  Wall.  349.  S.  P.  Clark  v.  Davenport,  14  Iowa,  495;  Mer- 
riam  v.  Moody's  Executors,  25  Iowa,  163;  Nichol  v.  Mayor,  &c,  9  Humph. 
252;  Leonard  v.  Canton,  35  Miss.  189,  where  Fisher,  J.,  gives  a  clear  expo- 
sition of  the  rationale  of  the  doctrine  that  corporate  grants  should  be  strictly 
construed.  Douglas  v.  Placerville,  18  Cal.  643,  647;  Argenti  v.  San  Fran- 
cisco, 16  Cal.  282 ;  Wallace  v.  San  Jose,  29  Cal.  180.  With  us,  cities,  towns 
and  municipal  corporations  of  all  kinds,  are  created  and  endowed  with 
powers  by  the  legislature.  These  are  of  a  legislative  and  administrative 
character,  to  aid  in  the  better  government  of  localities  or  portions  of  the 
state.  This  power  exists  no  further  than  it  has  been  delegated.  And  mu- 
nicipal corporations,  in  their  action,  are  confined  "to  a  strict  construction  of 
the  grants  of  powers  contained  in  their  charters  "  or  acts  of  incorporation. 
Lafayette  v.  Cox,  5  Ind.  (Porter)  38,  1854.  "  It  is  proper,  too,  that  these 
powers  should  be  strictly  construed,  considering  with  how  little  care  char- 
tered privileges  are  these  days  granted."  Bank  v.  Chilicothe,  7  Ohio,  part 
H.  31,  35,  1836,  per  Hitchcock,  J. ;  Collins  v.  Hatch,  18  Ohio,  523.  "  Boroughs 
and  towns  are,  confessedly,  inferior  corporations.  They  act  not  by  any 
inherent  right  of  legislation,  like  the  legislature  of  the  state,  but  their  au- 
thority is  delegated,  and  their  powers,  therefore,  must  be  strictly  pursued. 

Within  the  limits  of  their  charter,  their  acts  are  valid  ;  icithout  it,  they  are 
void.  Willard  v.  Killingworth,  8  Conn.  247,  per  Daggett,  J.,  approved  10  lb. 
442.  "The  action  of  municipal  corporations  is  to  be  held  strictly  withiu  the 
limits  prescribed  by  statute.  Within  these  limits,  they  are  to  be  favored  by 
the  courts.     Powers  expressly  granted,  or  necessarily  implied,  are  not  to  be 

defeated  or  impaired  by  a  stringent  construction."     Smith  v.  Madison,  1 

Ind.  86 ;  Kyle  v.  Malin,  8  lb.  34,  57,  per  Stuart,  J. 


176  MUNICIPAL     CORPORATIONS.  [Ch.  V. 

account  of  the  complex  character  of  municipal  duties,  and 
the  various,  miscellaneous,  and  frequently  indefinite,  pur- 
poses or  objects  which  municipalities  are  authorized  to  ex- 
ecute or  carry  into  operation.1 

Usage  as  Affecting  Municipal  Powers. 

§  50.  In  England  municipal  corporations  claim  and 
exercise  many  powers  wholly  in  virtue  of  long- established 
usage,  or  of  prescription,  which  implies  $  lost  charter  con- 
ferring such  powers.8  Indeed,  from  immemorial  usage, 
powers  are  recognized  as  valid,  which  could  not  lawfully 
originate  in  a  royal  charter.  A  usage  to  give  a  right  must, 
however,  be  long  established,  and  forty  years'  duration  was 
not  considered,  of  itself,  to  be  sufficient  for  this  purpose.1 
But  usage  in  this  country  has  a  much  more  limited  opera- 
tion. It  seems  to  be  a  npcessary  result  of  the  manner  in 
which  our  municipal  corporations  are  created,  viz :  by  ex- 
press legislative  act,  wherein  their  powers  and  duties  are 
wholly  prescribed,  that  the  powers  themselves  cannot  be 
added  to,  enlarged,  or  diminished,  by  proof  of  usage. 

§  57.  In  a  case  in  Massachusetts,  the  learned  Chief  Jus- 
tice Bigelow,  after  stating  the  decision  of  the  Supreme 
Court,  that  towns  in  Massachusetts  had  no  authority  to  ap- 

In  concluding  this  note,  the  author  thinks  it  pertinent  to  remark,  that 
the  principle  of  strict  construction  should  not  be  pressed  in  any  case  to  such 
an  unreasonable  extent  as  to  defeat  the  legislative  purpose  fairly  appearing 
upon  the  entire  charter  or  enactment.  Perhaps  the  rule  as  it  is  briefly  ex- 
pressed in  the  text,  best  embodies  the  result  of  the  adjudications  upon  this 
point,  namely:  If,  upon  the  -whole,  there  be  fair,  reasonable,  and  substan- 
tial doubt  whether  the  legislature  intended  to  confer  the  authority  in  ques- 
tion, particularly  if  it  relates  to  a  matter  extra-municipal  or  unusual  in  its 
nature,  and  the  exercise  of  which  will  be  attended  with  taxes,  tolls,  assess- 
ments, or  burdens  upon  the  inhabitants,  or  oppress  them,  or  abridge  natural 
or  common  rights,  or  divest  them  of  their  property,  the  doubt  should  be 
resolved  in  favor  of  the  citizen,  and  against  the  municipality.  Infra, 
aec.  73. 

1  Spalding  v.  Lowell,  23  Pick.  71 ;  ante,  sees.  8-11 ;  post,  chap.  VI.  where 
some  of  these  miscellaneous  or  special  powers  are  considered. 

*  Ante,  chap.  II.  sec.  12;  chap.  III.  sec.  15. 

8  Chad  v  Tilsed,  5  J.  B.  Moore,  185.  As  to  the  proper  office  of  usage 
in  England,  both  as  a  source  of  power  and  to  aid  in  the  interpretation  of 
charters,  see  Grant  on  Corp.  19,  27,  28,  20,  552,  564. 


Ch.  V.]  municipal    charters.  177 

propriate  money  for  the  celebration  of  the  Fourth  of  July, 
remarks,  in  relation  to  the  attempt  to  sustain  the  appropria- 
tion on  the  ground  of  usage  :  "  Usage  cannot  alter  the  case. 
An  unlawful  expenditure  of  money  by  a  town  cannot  be 
rendered  valid  by  usage,  however  long  continued.  Abuses 
of  power  and  violations  of  right  derive  no  sanction  from 
time  or  custom.  A  casual  or  occasional  exercise  of  a  power 
by  one  or  a  few  towns  will  not  constitute  usage.  It  must 
not  only  be  general,  and  of  long  continuance,  but,  what  is 
more  important,  it  must  also  be  a  custom  necessary  to  the 
exercise  of  some  corporate  power,  or  the  enjoyment  of  some 
corporate  right,  or  which  contributes  essentially  to  the  ne- 
cessities and  convenience  of  the  inhabitants.  The  usage 
relied  on  in  the  present  case  would  not  satisfy  either  of  these 
last-named  requisites,  which  are  necessary  to  give  it  valid- 
ity."1 But  general  and  long-continued  usage  is  not  without 
its  importance,  and  usage  of  this  character  may  be  resorted 
to  in  aid  of  a  proper  construction  of  the  charter  or  statute, 
but  no  further.  If  the  language  be  uncertain  or  doubtful,  a 
uniform,  long-established,  and  unquestioned  usage  will  be 
regarded  by  the  courts  in  determining  the  mode  in  which 
powers  may  be  exercised,  and  to  a  reasonable  extent  in 
determining  the  scope  of  the  powers  themselves  ;  but  usage 
can  have  no  room  for  operation  where  the  language  of  the 
enactment  is  plain  and  the  legislative  intent  is  clear  upon 
the  face  of  it.' 

1  Hood  ■».  Lynn,  1  Allen  (Mass.),  103,  1861.  Further  as  to  usage,  con- 
sult Will  ard  v.  Newburyport,  12  Pick.  227;  Spaulding  v.  Lowell,  23  Pick. 
71;  Smith  v.  Cheshire,  13  Gray  (Mass.),  308,  1859;  Butler  v.  Charlestown, 
7  Gray,  12,  16,  1856;  Benoit  v.  Conway,  10  Allen,  528. 

5  Smith  v.  Cheshire,  13  Gray,  308;  Butler  v.  Charlestown,  7  Gray,  12, 
16;  Sherwin  v.  Bugbee  (validity  of  school  meeting),  16  Vt.  439,  444,  where 
Redfield,  J.,  remarks:  "  In  construing  statutes  applicable  to  public  corpora- 
tions, courts  will  attach  no  slight  weight  to  the  uniform  practice  under 
t'hem,  if  this  practice  has  continued  for  a  considerable  period  of  time."  It 
is  a  rule  "founded  on  reason  and  common  sense,"  says  the  Court  of  Appeals 
of  Maryland,  that  "doubtful  words  in  a  general  statue  may  be  expounded 
with  reference  to  a  general  usage ;  and  when  a  statute  is  applicable  to  a 
particular  place  only,  such  words  may  be  construed  by  usage  at  that  place." 
Frazier  v.  Warfield  (Inspection  Act  for  Baltimore),  13  Md.  279,  303;  S.  P. 
Love  v.  Hinckley,  Abt.  Adm.  436 ;  see,  also,  Rex  v.  Chester,  1  Maule  & 
Selw.  101 ;  Rex  v.  Salway,  9  B.  &  C.  424. 
11 


17S 


MUNICIPAL     CORPORATIONS. 


[Ch.  V. 


Discretionary  Powers  not  Subject  to  Judicial  Control. 

§  58.  Power  to  do  an  act  is  often  conferred  upon  muni- 
cipal corporations,  in  general  terms,  without  being  accom- 
panied by  any  prescribed  mode  of  exercising  it.  In  such 
cases  the  common  council,  or  governing  body,  necessarily 
have,  to  a  greater  or  less  extent,  a  discretion  as  to  the  man- 
ner in  which  the  power  shall  be  used.1     So  where  the  law 


Where  the  true  construction  of  a  charter  admits  of  doubt,  and  the  con- 
struction adopted  by  the  city  authorities  has  been  acquiesced  in  generally, 
and  acted  upon  by  third  persons  in  good  faith,  in  their  transactions  with 
the  city,  it  will  be  precluded  by  the  courts  in  actions  by  such  third  parties 
from  denying  its  construction  to  be  the  true  one.  Van  Hostrup  v.  Madison 
City  (on  railroad  bonds),  1  "Wall.  (U.  S.)  291,  1863;  Meyer  v.  Muscatine  (on 
railroad  bonds),  lb.  384,  391.  Post,  sec.  353.  Further  as  to  estojipel,  see 
chapter  on  Contracts,  post.     Post,  sees.  381,  431  n.,  433  n.,  738  n.,  749,  766. 

1  Railroad  Co.  v.  Evansville  (power  to  subscribe  stock  and  to  borrow 
money),  15  Ind.  395,  I860;  Kelly  v.  Milwaukee,  18  Wis.  83;  Slack  v.  Rail- 
road Co.,  13  B.  Mon.  1 ;  Bridgeport  «.  Railroad  Co.,  15  Conn.  475,  501, 1843. 
per  Church,  J.;  Harrison  v.  Baltimore,  1  Gill  (Md.)  264,  1843;  Cincinnati 
v.  Gwynne,  10  Ohio,  192;  Markle  v.  Akron,  14  Ohio,  586.  Where  a  muni- 
cipal corporation  is  entrusted  with  the  execution  of  a  power,  and  is  not 
confined  to  a  particular  mode,  but  has  a  discretion  in  the  choice  of  means, 
a  plain  case  of  abuse  must  be  shown  resulting  in  an  injury  to  the  petitioner, 
to  warrant  an  injunction  against  the  corporation.  Page  v.  St.  Louis 
(special  assessment),  20  Mo.  136,  1853;  Colton  v.  Hanchett,  13  111.615; 
Mayor  of  Baltimore  v.  Gill,  31  Md.  375;  Holland  v.  Baltimore,  11  Md.  186; 
Dodd  o.  Hartford,  25  Conn.  232;  Sheldon  v.  School  District,  lb.  224; 
Lockwood  v.  St.  Louis,  24  Mo.  20;  Dean  v.  Todd,  22  Mo.  19;  Mayor,  &c. 
v.  Meserole,  26  Wend.  132.  See  chapters  on  Contracts  and  Taxation,  post. 
Wells®.  Atlanta,  43  Geo.  67,  1871;  Coulson  v.  Portland,  Deady  R.  481, 
1868.  Post,  sec.  741.  In  respect  to  the  legislative  functions  of  a  muni- 
cipal body,  the  courts  are  bound  to  presume  that  they  will  exercise  any 
discretion  with  which  they  are  clothed  properly,  and  that  they  had  suffi- 
cient reasons  for  doing  an  act,  the  result  of  such  discretion.  Railroad  Co. 
v.  Mayor  of  New  York,  1  Hilton,  562,  1858. 

By  statute  in  Canada,  certain  superior  courts  have  power  in  their  dis- 
cretion to  set  aside  by-laws  for  illegality  on  the  application  of  persons  in- 
terested, but  these  courts  will  not  entertain  an  application  to  set  aside  a 
by-law  on  a  matter  of  fact,  which  according  to  municipal  act,  or  a  by-law 
passed  under  it,  should  be  ascertained  and  finally  determined  by  an  officer 
of  the  corporation,  unless  perhaps  fraud  or  corrupt  conduct  be  imputed 
to  such  officer.  See  In  re  Michie  and  the  Corporation  of  the  City  of  Toronto. 
11  U.  C.  C.  P.  379. 


Ch.  v.]  municipal   charters.  179 

or  charter  confers  upon  the  city  council,  or  local  legislature, 
power  to  determine  upon  the  expediency  or  necessity  of 
measures  relating  to  the  local  government,  their  judgment 
upon  matters  thus  committed  to  them,  while  acting  within 
the  scope  of  their  authority,  cannot  be  controlled  by  the 
courts.  In  such  case,  the  decision  of  the  proper  corporate 
officers  is  final  and  conclusive,  unless  they  transcend  their 
powers.1  Thus,  for  example,  if  a  city  has  power  to  grade 
streets,  the  courts  will  not  inquire  into  the  necessity  of  the 
exercise  of  it,  or  the  refusal  to  exercise  it,  nor  whether  a 
particular  grade  adopted,  or  a  particular  mode  of  executing 
the  grade,  is  judicious.'  So  if  a  city  has  power  to  build  a 
market-house,  the  courts  cannot  inquire  into  the  size  and 
fitness  of  the  building  for  the  object  intended.' 

§  59.  So,  also,  where,  by  its  charter,  a  municipal  cor- 
poration is  empowered,  if  it  deems  the  public  welfare  or 
convenience  requires  it,  to  open  streets  or  make  public  im- 
provements thereon,  its  determination,  whether  wise  or  un- 
wise, cannot  be  judicially  revised  or  corrected.4  On  the 
ground  that  it  is  the  province  of  the  municipal  authorities, 
and  not  of  the  judicial  tribunals,  to  determine  what  im- 
provements shall  be  made  in  the  streets  and  highways  of 
the  corporation,  the  court,  on  application  of  citizens,  re- 
fused to  compel  a  city  to  cover  over  an  open  draining  canal 
of  long  standing,  it  "  not  appearing  to  be  a  nuisance  in  the 
legal  sense  of  the  word."  '  So  where  it  is  made  the  duty 
of  a  city  to  remove,  as  far  as  they  may  be  able,  every 
nuisance  which  may  endanger  health,  the  courts  cannot 
control  the  manner  in  which  this  shall  be  done.'    And 

1  Baker®.  Boston,  12  Pick.  184;  Hovey  v,  Mayo,  43  Maine,  322,  1857; 
Fay,  petitioner,  15  Pick.  243,  1834;  Parks  v.  Boston,  8  Pick.  218,  1829. 

s  Hovey  v.  Mayo,  street  commissioner,  43  Maine,  322,  1857;  Benjamin 
e.  Wheeler,  8  Gray,  409,  413,  1857. 

*  Spalding  v.  Lowell,  23  Pick.  71,  80,  1839. 

4  Methodist  P.  Church  v.  Baltimore,  6  Gill.  (Md.)  891,  1848.  Passing 
ordinances  in  relation  to  opening,  &c,  of  streets,  is  the  exercise  of  legis- 
lative, not  judicial,  power.  Wiggin  v.  Mayor,  &c.  of  New  York,  9  Paige, 
16,  1841.     See  chapter  on  Eminent  Domain,  post. 

6  Inhabitants  v.  New  Orleans,  14  La.  An.  452,  1859. 

•  Eaker  v.  Boston,  12  Pick.  184,  1831;  see,  also,  Kelly  o.  Milwaukee,  18 


180  MUNICIPAL     CORPORATIONS.  [Ch.  V. 

generally,  the  judicial  tribunals  will  not  interfere  with 
municipal  corporations  in  their  internal  police  and  admin- 
istrative government,  unless  some  clear  right  has  been  with- 
held or  wrong  perpetrated.1 

Public  Powers  and  Trusts  Incapable  of  Delegation. 

§  60.  The  principal  is  a  plain  one,  that  the  public 
powers  or  trusts  devolved  by  law  or  charter  upon  the  council 
or  governing  body,  to  be  exercised  by  it  when  and  in  such 
manner  as#  shall  judge  best,  cannot  be  delegated  to  others. 
Thus,  where  by  charter  or  statute,  local  improvements,  to  be 
assessed  upon  the  adjacent  property  owners,  are  to  be  con- 
structed in  "such  manner  as  the  common  council  shall 
prescribe  "  by  ordinance,  it  is  not  competent  for  the  council 
to  pass  an  ordinance  delegating  or  leaving  to  any  officer 
or  committee  of  the  corporation  the  power  to  determine 
the  mode,  manner,  or  plan  of  the  improvement.  Such  an 
ordinance  is  void,  since  powers  of  this  kind  must  be  exer- 
cised in  strict  conformity  with  the  charter  or  incorporating 
act.2    So,  where  a  power,  for  example,  the  power  to  issue 

Wis.  83,  1864;  Goodrich  v.  Chicago,  20  111.  445.  Further  as  to  nuisances, 
see  chapter  on  Ordinances,  post.     Index — Nuisances. 

1  State  v.  Swearingen,  12  Geo.  23.     Post,  chap.  XXII. 

s  Thompson  v.  Schermerhorn.  6  N.  T.  (2  Seld.)  92,  1851,  relating  to 
grading  and  leveling  streets;  affirming  S.  C,  9  Barb.  152,  and  approving, 
in  the  main,  the  views  there  expressed  by  Mr.  Justice  Cadi/.  Same  principle 
applied  in  similar  case,  Ruggles  v.  Collier,  43  Mo.  359,  1869,  holding  that 
where  the  charter  gave  the  city  power  to  require  streets  to  be  paved,  "in 
all  cases  where  the  city  council  shall  deem  it  necessary,"  it  could  not,  by 
ordinance,  make  the  mayor  the  judge  of  the  necessity  for  paving.  Re- 
affirmed but  distinguished,  Sheehan  v.  Gleeson,  46  Mo.  100,  1870;  East  St. 
Louis  v.  Wehrung,  50  111.  28,  1869.  So,  where  the  charter  gives  the  city 
council  power  to  construct  sewers  of  such  "dimensions  as  maybe  prescribed 
by  ordinance,"  the  council  cannot,  by  ordinance,  require  sewers  to  be  con- 
structed of  such  dimensions  as  may  be  deemed  requisite  by  the  city  en- 
gineer. St.  Louis  v.  Clemens,  43  Mo.  395, 1869,  overruling  St.  Louis  v.  Eters, 
36  Mo.  456.  See,  further,  State  v.  New  Brunswick,  1  Vroom  (N.  J.)  395, 
1863;  Meuser  t>.  Risdon,  36  Cal.  239;  Hydes  v.  Joyes,  4  Bush  (Ky.)  464; 
post,  chapter  on  Taxation.  So,  where  a  charter  directed  the  common  coimcU 
to  appoint  a  time  when  persons  interested  in  an  appUcation  for  opening  a 
Btreet  would  be  heard,  the  council  must  itself  fix  the  time,  and  cannot  del- 
egate that  duty  to  the  clerk.     If  it  does  so.  its  proceedings  will  be  set  aside 


Ch.  V.]  MUNICIPAL    CHARTERS.  181 

licenses,  is  granted  by  law,  or  by  an  ordinance  duly  passed, 
to  the  mayor  and  aldermen,  they  are  constituted  to  act  as 
one  deliberative  body,  to  the  end  that  they  may  assist  each 
other  by  their  united  wisdom  and  experience,  and  the 
result  of  their  conference  be  the  ground  of  their  determina- 
tion ;  and' where  this  is  the  case,  the  board  of  aldermen 
cannot,  even  by  a  vote,  delegate  the  power  to  the  mayor 
alone.1  But  the  principle  that  municipal  powers  or  dis- 
cretion cannot  be  delegated,  does  not  prevent  a  corporation 
from  appointing  agents  and  empowering  them  to  make  con- 
tracts, nor  from  appointing  committees  and  investing 
them  with  duties  of  a  ministerial  or  administrative  char- 
acter.1 

Legislative  Powers  Incapable  of  Surrender. 

§  61.  Powers  are  conferred  upon  municipal  corporations 
for  public  purposes,  and  as  their  legislative  powers  cannot, 
as  we  have  just  seen,  be  delegated,  so  they  cannot  be  bar- 
gained or  bartered  away.  Such  corporations  may  make 
authorized  contracts,  but  they  have  no  power,  as  a  party, 
to  make  contracts  or  pass  by-laws  which  shall  cede  away, 
control  or  embarrass  their  legislative  or  governmental 
powers,  or  which  shall  disable  them  from  performing  their 
public  duties.3    The  cases  cited  illustrate  this  salutary  prin- 

on  certiorari  or  other  direct  proceeding.  State  v.  Jersey  City,  1  Dutch.  (N. 
J.)  309,  1855;  State  v.  Jersey  City,  2  II.  444,  447;  State  v.  Paterson,  34 
N.  J.  Law,  163,  1870.  A  municipal  corporation  cannot  delegate  powers 
conferred  upon  and  to  be  exercised  by  it  to  a  street  committee  or  others. 
Whiter.  Mayor  (sidewalk  assessment),  2  Swan  (Tenn.)  364,  1852.  See  Smith 
v.  Morse,  2  Cal.  524;  Oakland  v.  Carpentier,  13  Cal.  540;  Whyte  v.  Nash- 
ville, 2  Swan  (Tenn.)  364.     Post,  sees.  567,  618. 

1  Day.fl.  Green,  4  Cush.  433,  1849,  and  cases  there  cited.  Further,  as  to 
delegation  of  power,  Coffin  v.  Nantucket,  5  Cush.  269,  1850;  Ruggles  v. 
Nantucket,  11  Cush.  433;  Clark  v.  Washington,  12  Wheat.  40,  54,  1827; 
Cooley,  Const.  Lim.  204;  Railway  Co.  v.  Baltimore,  21  Md.  93,  1863. 

a  Railroad  Co.  v.  Marion  Co.,  36  Mo.  294;  Schenley  v.  Commonwealth, 
36  Pa.  St.  62.     See  chapters  on  Contracts  and  Corporate  Meetings,  post. 

*  Milhau  v.  Sharp,  27  N.  Y.  611,  1863;  111.  &c.  Co.  v.  St.  Louis,  2  Dillon 
C.  C.  Rep.  70;  Gale  v.  Kalamazoo  (market-house  contract),  23  Mich.  344, 
1871;  Louisville  City  Railroad  Co.  v.  Louisville,  8  Bush.  (Ky.)  415,  1871; 
People's  Railroad  v.  Memphis  Railroad,  10  Wall.  38,  50, 1869;  Presb.  Church 
v.  Mayor,  &c.  of  N.  Y.,  5  Cow.  538,  1826;  followed,  Stuyvesant  v.  Mayor, 


1S2  MUNICIPAL     CORPORATIONS.  [Ch.  V. 

ciple  in  a  great  variety  of  circumstances,  and,  for  the  pro- 
tection of  the  citizen,  it  is  of  the  first  importance  that  it 
shall  be  maintained  by  the  courts  in  its  full  scope  and  vigor. 

Mandatory  and  Discretionary  Powers. 

§  62.  It  often  becomes  a  question  whether  a  duty,  im- 
posed by  law  or  charter  upon  municipal  corporations  or 
public  officers,  is  imperative  or  discretionary.  This  is  a 
question  of  legislative  intention.  The  words  that  a  corpo- 
ration, or  officer,  "may"  act  in  a  certain  way,  or  that  it  ' 
"shall  be  lawful"  to  act  in  a  certain  way,  may  be  impera- 
tive. On  this  subject  the  cases  sustain  the  doctrine,  that 
what  public  corporations  or  officers  are  empowered  to  do 
for  others,  and  which  is  beneficial  to  them  to  have  done,  the 
law  holds  they  ought  to  do,  especially  if  the  law  supplies 
them  with  the  means  of  executing  the  power.  The  power 
in  such  cases  is  conferred  for  the  benefit  of  others ;  and  the 
intent  of  the  legislature,  which  is  the  test  in  such  cases, 
ordinarily  seems,  under  such  circumstances,  to  be,  to  im- 

&c.  of  N.  Y.,  7  Cow,  588;  Sav.  Fund  e.  Philadelphia,  31  Pa.  St.  175;  Ex 
parte  Mayor,  &c.  of  Albany,  23  Wend.  277;  Railroad  Co.  v.  Mayor,  &c,  1 
Hilt.  562,  568;  Martin  v.  Mayor,  &c,  1  Hill  (N.  Y.)  545,  1841;  Goszler  v. 
Georgetown,  6  Wheat.  593;  Sedgw.  Const,  and  St.  Law,  634;  State  v. 
Graves,  19  Md.  351,  373,  1862;  Bryson  v.  Philadelphia,  47  Pa.  St.  329; 
Cooley  Const.  Lira.  206;  Albany  St.,  6  Abb.  Pr.  R.  273;  Britton  v.  Mayor, 
&c.  of  N.  Y.,  21  How.  Pr.  R.  251;  New  York  v.  Second  Av.,  &c.  Co.,  32 
N.  Y.  261;  Dingman  v.  People,  51  111.  277;  Brimmer  v.  Boston,  102  Mass. 
19,  1869;  Johnson  v.  Philadelphia,  60  Pa.  St.  445;  State  v.  Cin.  Gas  Co.,  18 
Ohio  St.  262,  295 ;  Jackson  v.  Bowman,  39  Miss.  671,  1861 ;  Oakland  v.  Car- 
pentier,  13  Cal.  540,  1859,  opinion  of  Baldwin,  J. ;  Smith  v.  Morse,  2  Cal. 
524;  Louisville  City  Railway  v.  Louisville,  8  Bush.  (Ky.)  415.  Ante,  sec. 
30  and  note.  Compare  Attorney  General  v.  Mayor,  &c.  of  N.  Y.,  3  Duer, 
119,  131,  147;  Davis  v.  Same,  14  N.  Y.  (4  Kern.)  506,  532;  Costar  v.  Brush, 
25  Wend.  628;  Brooklyn  v.  City  Railroad  Co.,  47  N.  Y.  475,  1872.  One 
legislature,  in  the  enactment  of  laws,  cannot,  by  contract,  put  it  out  of  the 
power  of  a  subsequent  legislature  to  repeal  or  amend  them;  cannot  thus 
surrender  a  portion  of  its  sovereign  power.  Dibolt  v.  Ins.  and  Trust  Co., 
1  Ohio  St.  564;  Plank  R.  Co.  v.  Husted,  3  lb.  578,  per  Bartley,  C.  J.,  dis- 
senting; Matheny  v.  Golden,  5  Ohio  St.  375;  Mott  v.  Pa.  Railroad  Co.,  30 
Pa.  St.  9,  1858.  But  see,  in  Supreme  Court  of  the  United  States,  Home  v. 
Rouse,  8  Wall.  430,  and  prior  cases  cited,  and  the  vigorous  dissent,  lb.  441, 
which  seems,  were  the  question  open,  to  be  the  sound  view.  Cooley,  Const. 
Lim.  127,  280;  Sedg.  Const,  and  St.  Law,  616,   633.     Pout,  sees.  318,  56?. 


Ch.  v.]  municipal    charters.  183 

pose  a  positive  and  absolute  duty.  But,  under  other  cir- 
cumstances, where  the  act  to  be  done  does  not  affect  third 
persons,  and  is  not  clearly  beneficial  to  them  or  the  public, 
and  the  means  for  its  performance  are  not  supplied,  the 
words,  "may"  do  an  act,  or  it  is  "lawful"  to  do  it,  do  not 
mean  "must,"  but  rather  indicate  an  intent  in  the  legisla- 
ture to  confer  a  discretionary  power.1  Each  case  must  be 
largely  decided  on  its  own  circumstances,  and  the  legisla- 
tive intent  gathered  from  the  whole  act. 

§  63.  It  is,  also,  sometimes  difficult  to  determine 
whether  specific  duties  prescribed  by  the  charter  or  incor- 
porating act  rest  upon  the  corporation,  or  upon  the  alder- 
men or  other  officers  named,  in  their  individual  capacity. 
The  question  is  one  of  construction.     The  general  rule  is 

1  Mason  v.  Fearson  (duty  of  city  under  tax  law),  9  How.  (U.  S.)  248, 
259,  per  Woodbury,  J.,  and  authorities  there  cited.  It  is  the  '.ettled  doc- 
trine in  New  York,  that  where  a  public  or  municipal  corporation  or  body  is 
invested  with  power  to  do  an  act  which  the  public  interests  require  to  be 
done,  and  the  means  for  its  complete  performance  are  placed  at  its  disposal 
not  only  the  execution,  but  the  proper  execution  of  the  power,  may  be  in- 
sisted on  as  a  duty,  though  the  statute  conferring  it  be  only  permissive  in 
its  terms.  Mayor,  &c.  of  New  York  v.  Furze,  3  Hill,  612,  holding  corpora- 
tion liable  for  omitting  its  duty  to  repair  sewers,  although  it  would  not 
have  been  liable  for  omitting  to  have  constructed  them  originally.  Ap- 
proved, 16  N.  Y.  162,  note,  per  Selden,  J. ;  per  Denio,  J.,  9  N.  Y.  168,  458; 
per  Allen,  J.,  lb.  461.  See,  further,  the  chapter  on  Actions,  post,  sees.  753, 
800-802. 

When  words  are  imperative,  and  wheri  directory,  see  further:  Grant  Corp. 
34,  35 ;  Rex  v.  Mayor,  &c.  of  Hastings,  5  Barn.  &  Aid.  592,  note ;  Attorney 
General  v.  Lock,  3  Atk.  164;  Rex  v.  Mayor,  &c.  of  Chester,  1  Maule  &  Sel. 
101;  Rexi).  Bailiffs,  &c,  1  Barn.  &  Cress.  86;  3  lb.  272;  Railroad  Co.  v. 
Platte  Co.,  42  Mo.  171 ;  Railroad  Co.  v.  Buchanan  Co.,  39  Mo.  485 ;  Grant  s. 
Erie,  69  Pa.  St.  420;  Goodrich  v.  Chicago,  20  111.  445,  authority  to  city 
"to  remove  all  obstructions  in  the  harbor,"  held  not  imperative,  lb.  Ot- 
tawa v.  People,  48  111.  233 ;  Carr  v.  North  Liberties,  35  Pa.  St.  324 ;  Joliet 
e.  Verley,  35  111.  58;  Wilson  v.  Mayor,  &c,  1  Denio,  595.  An  act  that  "the 
city  council  are  hereby  authorized  to  elect  a  recorder,  in  whom  they  may 
vest  exclusive  jurisdiction  of  all  violations  of  their  ordinances,"  imposes 
the  duty  to  elect  this  officer.  The  language  is  injunctive,  and  not  discre- 
tionary. Vason  v.  Augusta,  38  Geo.  542,  1868.  The  expression,  in  a  sup- 
plemental charter,  ilit  shall  be  lawful"  construed  not  to  enjoin  an  impera- 
tive duty  on  the  corporation.  Seiple  t  Elizabeth,  3  Dutch.  (N.  J.)  407; 
Steines  v.  Franklin  Co.,  48  Mo.  167,  1871.     See  post,  sees.  669-673. 


184  MUNICIPAL     CORPORATIONS.  [Ch.  V. 

this :  that  where  powers  pertaining  to  the  duties  of  a  cor- 
poration are  conferred  upon  those  who  officially  represent 
the  corporation,  these  powers,  unless  the  contrary  appear, 
are  deemed  to  be  conferred  upon  them  in  their  corporate, 
not  their  individual,  character — in  other  words,  upon  the 
corporation  itself.1 


Exemption  of  Revenues  from  Judicial  Seizure. 

§  64.  Municipal  corporations  are  instituted  by  the 
supreme  authority  of  a  state  for  the  public  good.  They  ex- 
ercise, by  delegation  from  the  legislature,  a  portion  of  the 
sovereign  power.  The  main  object  of  their  creation  is  to  act 
as  administrative  agencies  for  the  state,  and  to  provide  for 
the  police  and  local  government  of  certain  designated  civil 
divisions  of  its  territory.2  To  this  end  they  are  invested 
with  governmental  powers  and  charged  with  civil,  political, 
and  municipal  duties.  To  enable  them  beneficially  to  exer- 
cise these  powers  and  discharge  these  duties,  they  are 
clothed  with  the  authority  to  raise  revenues  by  taxation  and 
other  modes,  as  by  fines  and  penalties.  The  revenue  of  the 
public  corporation  is  the  essential  means  by  which  it  is  en- 
abled to  perform  its  appointed  work.  Deprived  of  its  regu- 
lar and  adequate  supply  of  revenue,  such  a  corporation  is 
practically  destroyed,  and  the  very  ends  of  its  erection 
thwarted.  Based  upon  considerations  of  this  character,  it 
is  the  settled  doctrine  of  the  law  that  the  taxes  and  public 
revenues  of  such  corporations  cannot  be  seized  under  exe- 
cution against  them.  Such  taxes  and  revenues  cannot  be 
seized  either  in  the  treasury  or  when  in  transit  to  it.  Judg- 
ments rendered  for  taxes,  and  the  proceeds  of  such  judg- 
ments in  the  hands  of  officers  of  the  law,  are  not  subject  to 
execution  unless  so  declared  by  statute.  The  doctrine  of 
the  inviolability  of  the  public  revenues  by  the  creditor  is 
maintained,  although  the  corporation  is  in  debt,  and  has  no 

1  Conrad  v.  Ithaca,  16  N.  Y.  158,  per  Selden,  J.,  p.  170;  Hickok  e. 
Plattsburg,  15  Barb.  S.  C.  427 ;  Glidden  v.  Unity,  10  Fost.  (N.  H.)  104. 
119  \  post,  §778. 

2  Ante,  chap.  II.  sees.  9  11. 


Ch.  v.]  municipal   charters.  185 

means  of  payment  but  the  taxes  which  it  is  authorized  to 
collect.1 

§  65.  Upon  similar  considerations  of  public  policy, 
municipal  corporations  and  their  officers  have  usually, 
though  not  uniformly,  been  considered  not  to  be  subject  to 
garnishment,  although  private  corporations,  equally  with 
natural  persons,  are  liable  to  this  process.  The  cases  on  the 
subject,  as  respects  municipal  corporations,  are  referred  to 

1  Edgerton  v.  Municipality,  1  La.  An.  435,  1846,  where  the  subject  is 
ably  discussed  in  the  opinion  of  Host,  J.  He  says:  "On  the  first  view  of 
this  question  there  is  something  very  repugnant  to  the  moral  sense  in  the 
idea  that  a  municipal  corporation  should  contract  debts,  and  that,  having 
no  resources  but  the  taxes  which  are  due  to  it,  these  should  not  be  sub- 
jected, by  legal  process,  to  the  satisfaction  of  its  creditors.  This  considera- 
tion, deduced  from  the  principles  of  moral  duty,  has  only  given  way  to  the 
more  enlarged  contemplation  of  the  great  and  paramount  interests  of  public 
order  and  the  principles  of  government."  lb.  440.  S.  P.  Municipality  v. 
Hart,  6  La.  An.  570,  1851.  This  case  holds  that  a  judgment  in  favor  of  the 
corporation  for  a  fine  incurred  for  a  violation  of  a  municipal  ordinance  is 
exempt  from  execution;  but  that  an  ordinary  debt  due  the  corporation  (as 
on  a  bond  taken  for  paving)  is  liable  to  be  seized.  But  qucere  ?  In  Edger- 
ton v.  Municipality,  supra,  it  was  decided  that  the  public  taxes  and  revenues 
of  the  corporation  could  not  be  seized  under  execution,  notwithstanding  the 
general  provision  of  the  Code  of  Practice  of  Louisiana,  authorizing  the 
seizure,  under  execution,  of  "all  sums  of  money  which  may  be  due  to  the 
debtor  in  whatsoever  right," — this  general  language  being  construed  to 
refer  alone  to  rights  of  property,  and  not  to  taxes  imposed  for  the  protection 
of  those  rights.  So  in  the  Railroad  Co.  v.  Municipality,  7  La.  An.  148. 
1852,  it  was  held  that  perpetual  ground  rents,  created  and  intended  by  the 
legislature  to  form  part  of  the  permanent  revenue  of  the  city  to  enable  it  to 
exercise  its  municipal  powers  of  police  and  local  government,  cannot  be  sold 
on  execution  against  the  corporation. 

The  public  nature  of  municipal  corporations  is  well  illustrated  by  the 
decision  of  the  Supreme  Court  of  the  United  States  in  the  late  case  of  The 
United  States  v.  The  Baltimore  &  Ohio  Railroad  Company,  Dec.  Term,  1872. 
The  case  involved  the  right  of  Congress  to  levy  a  tax  upon  the  income  or 
property  of  a  municipal  corporation;  and  viewing  such  a  corporation  as  an 
arm  of  the  state,  and  partaking  of  the  state's  exemption  from  liability  to  be 
taxed  upon  the  means  and  instrumentalities  employed  in  conducting  its 
operations,  it  was  held  that  the  tax  sought  to  be  enforced  under  the  Inter- 
nal Revenue  Act  could  not  be  collected.  Post,  sec.  615  a.  See  chapter  on 
Taxation,  post.  Property  owned  by  a  city  as  an  investment  of  funds 
merely,  held  liable  to  seizure  on  execution.  New  Orleans  v.  Insurance  Co.. 
23  La.  An.  61,  1871.     Post,  sees.  446,  686,  693,  712. 


186  MUNICIPAL     CORPORATIONS.  [Ch.  V. 

in  the  note,  and  it  will  be  seen,  on  examination,  that  some 
of  them  turn  on  the  construction  of  particular  statutes,  and 
that  the  judges  differ  in  opinion  respecting  the  policy  and 
expediency  of  subjecting,  upon  general  principles,  such 
corporations  to  the  process  of  garnishment.  The  author 
suggests,  where  the  question  is  left  entirely  open  by  statute, 
that,  on  principle,  a  municipal  corporation  should  be  ex- 
empt from  liability  of  this  character  with,  respect  to  its 
revenues  and  the  salaries  of  its  officers,  but  that  where  it 
owes  an  ordinary  debt  to  a  third  person,  the  mere  incon- 
venience of  having  to  answer  as  garnishee  furnishes  no 
sufficient  reason  for  withdrawing  it  from  the  reach  of  the 
remedies  which  the  law  gives  to  creditors  of  natural  persons 
and  private  corporations.1 

1  The  Supreme  Court  of  Pennsylvania  is  of  the  opinion  that,  on  principle, 
a  municipal  corporation  or  its  officers  are  not  subject  to  garnishment  on 
attachment  or  execution,  and  that,  by  the  statutes  of  that  state,  they  are 
not  made  liable  thereto.  Erie  v.  Knapp,  29  Pa.  St.  173,  1857;  Bulkley  v. 
Eckert,  3  Barr  (Pa.)  3U8,  per  Sargeant,  J. ;  S.  P.  McDougal  v.  Supervisors, 
4  Minn.  184;  Bradley  v.  Richmond,  6  Vt.  121;  Burnham  v.  Fond  du  Lac, 
15  Wis.  193,  1862,  where  the  inconvenience  of  the  opposite  doctrine  is 
forcibly  pointed  out  by  Paine,  J. ;  Drake  on  Attach.,  sec.  516,  10 ;  Hadley 
v.  Peabody,  13  Gray,  200. 

In  Missouri,  also,  it  is  held,  upon  general  principles,  that  municipal 
corporations  are  not  subject  to  garnishment  on  account  of  salary  due  to 
their  officers.  Hawthorn  v.  St.  Louis,  11  Mo.  59,  1847;  S.  P.  Fortune  «. 
St.  Louis,  23  Mo.  239,  1856,  where  the  decision  is  placed  upon  the  broad 
ground  that  such  corporations  are  not  liable  to  be  garnished,  and  not  on  the 
ground  that  an  officer's  salary  is  exempt  from  such  process.  See,  also, 
Neuer  v.  Fallon,  18  Mo.  277.  Since  the  first  edition  of  this  work  the  Su- 
preme Court  of  Missouri  has  modified  in  an  important  respect  the  broad 
statement  of  the  doctrine  held  in  the  former  cases.  See  Pendleton  v.  Per- 
kins and  the  City  of  St.  Louis,  49  Mo.  565,  1872.  It  -was  there  held,  after 
great  consideration,  that  a  city  corporation  in  that  state  is  subject  to  gar- 
nishment where  the  main  debtor  has  absconded  so  that  judgment  cannot 
be  obtained  against  him  and  he  has  no  property  in  the  state  subject  to  attach- 
ment, but  has  money  in  the  city  treasury  belonging  or  due  to  him,  and  that 
it  may  in  such  case  be  reached  by  bill  in  equity  in  the  first  instance  without 
a  previous  judgment  at  law  and  without  showing  fraud  or  other  ground  of 
equitable  jurisdiction.  It  was  so  decided,  notwithstanding  the  garnish- 
ment act,  in  terms,  exempts  municipal  corporations  from  its  operation. 
The  opinion  of  Bliss,  C.  J.,  is  very  full  and  elaborate. 

In  Connecticut,  public  officers  having  money  in  their  hands,  to  which  an 
individual  is  entitled,  are  not  subject  to  garnishment  at  the  suit  of  the  cred- 
itors of  such  individual.     Stillman  v.  Isham,  11  Conn.  123,  1835,  and  cases 


Ch.  V.J  MUNICIPAL     CHARTERS.  187 

cited;  Ward  v.  County  of  Hartford,  12  11.  404,  408.  And  in  that  state,  a 
county,  not  having  power  to  contract  a  debt  for  which  an  action  will  lie 
against  it,-  is  not  subject  to  garnishment  in  such  a  case.  Ward  v.  County  of 
Hartford,  12  Conn.  404.  But  under  a  statute  enabling  towns  and  cities  to 
contract  debts,  and  which  provides  that  debts  due  from  "any  person  "  to  a 
debtor  may  be  attached,  these  corporations  may  be  factorized  or  garnished. 
Bray  v.  Wallingford,  20  Conu.  416,  1850. 

In  Smoot  v.  Hart,  33  Ala.  69,  1858,  it  is  held  that  the  marshal  of  a  city 
may  be  garnished  for  city  funds  in  his  hands;  whether  the  treasurer  could 
be  garnished  not  decided.  Mayor  v.  Rowland,  26  Ala.  498,  holds  that  a 
municipal  corporation  cannot  be  garnished  as  respects  accruing  salaries  to 
its  officers.  See,  also,  Clark  v.  School  Com.,  36  Ala.  621.  In  Massachusetts, 
a  county  is  not  chargable  as  a  garnishee  for  jurors'  fees.  Williams  v.  Board- 
man,  9  Allen,  570.  In  Maryland,  notwithstanding  a  general  statute  of  the 
state  authorized  the  garnishment  of  any  "  person  or  persons  whatever,  cor- 
porate or  sole,"  it  was  held  that  municipalities  were  not  included,  and  that, 
upon  general  grounds  of  public  policy  and  convenience,  the  city  could  not 
be  garnished  in  respect  of  money  due  from  the  salaries  of  its  officers, 
although  the  officer  whose  salary  was  attached  could  have  sued  the  city 
therefor.  Baltimore  v.  Root,  8  Md.  95,  1855.  The  city,  in  this  case,  was 
garnished  in  respect  of  money  due  from  it  to  a  police  officer. 

But  in  New  Hampshire,  under  a  statute  making  ''any  corporation  pos- 
sessed of  any  money  "  of  the  debtor  subject  to  garnishment,  a  town  was 
held  to  be  included.  Whidden  v.  Drake,  5  N.  H.  13.  See  Brown  v.  Heath, 
45  N.  H.  185.  In  Iowa,  it  was  held  that  the  words  "  debtor  or  person  hold- 
ing property,"  in  the  attachment  act,  extended  to  municipal  corporations, 
and  that  they  were  subject  to  garnishment  with  respect  to  ordinary  debts 
which  they  owed  the  main  debtor.  Wales  v.  Muscatine,  4  Iowa,  302,  1856. 
The  decision  of  the  court  asserts  the  liability  to  garnishment  on  general 
principles;  but  subsequently  the  legislature  enacted  that  "a  municipal  or 
political  corporation  should  not  be  garnished."  Rev.  1860,  sec.  3196. 
Requisites  of  notice  to  corporation,  Claffin  v.  Iowa  City,  12  Iowa,  284; 
Williams  v.  Kenney,  98  Mass.  142.  In  Ohio,  under  a  statute  which  provides 
that  "any  claims  or  choses  in  action,  due  or  to  become  due"  to  the  judg- 
ment debtor,  or  "money  which  he  may  have  in  the  hands  of  any  person, 
body  politic  or  corporate,"  are  subject  to  execution,  salaries  of  officers  of 
incorporated  cities,  due  and  unpaid,  may  be  subjected  by  the  judgment 
creditors  of  such  officers  to  the  payment  of  their  judgments,  and  municipal 
corporations  may  be  garnished  with  respect  to  such  salaries.  The  court 
admits  the  conflict  in  the  decisions  of  other  states  upon  similar  statutes,  but 
regards  the  construction  above  given  as  being  in  accordance  with  public 
policy  and  the  meaning  of  the  statute.  Newark  v.  Funk,  15  Ohio  St.  462, 
1864.  In  Illinois,  municipal  corporations  are  not  subject  to  garnishment  in 
any  case,  no  matter  what  may  be  the  character  of  the  indebtedness.  Thia 
position  is  maintained  by  Lawrence,  J.,  with  great  force.  Merwin  v.  Chi- 
cago, 45  111.  133,     Waiver.     Clapp  i  Walker,  25  Iowa,  315. 


188  MUNICIPAL     CORPORATIONS.  [Ch.  VI. 


CHAPTER  VI. 

Municipal  Charters. — Continued. 

Special  Powers  and  Special  Limitations. 

§  66.  While  municipal  corporations  are  instituted  foi 
the  same  general  purposes,  heretofore  explained,1  and  while 
there  is  a  striking  resemblance  in  the  authority  with  which 
they  are  clothed,  yet,  except,  when  organized  under  general 
acts,  the  powers  given  to  them  are  various,  both  in  character 
and  extent.2  True  policy,  indeed,  requires,  as  before  sug 
gested,  that  the  powers  of  these  bodies  should,  in  general, 
be  confined  to  subjects  connected  with  civil  government 
and  local  administration,  but  legislatures  are  usually  liberal 
in  grants  of  this  character,  and  there  is  no  limit  to  the 
faculties  and  capacities  with  which  municipal  creations 
may  be  endowed,  unless  that  limit  is  contained  in  the  state 
constitution.3  The  leading  powers  ordinarily  possessed  by 
municipalities,  such  as  those  relating  to  contracts,  eminent 
domain,  streets,  taxation,  ordinances,  corporate  officers, 
actions,  and  the  like,  will  be,  hereafter,  separately  treated. 
But  it  will  be  convenient  to  notice,  in  this  place,  some 
special  powers  usually  or  often  conferred  upon  munici- 
palities, and  some  special  limitations  upon  ordinary  muni- 
cipal powers,  and  the  construction  which  such  provisions 
have  judicially  received.  We  shall  here  consider  the  fol- 
lowing subjects  as  they  relate  to  municipal  corporations  : 
1.  Wharves.  2.  Ferries.  3.  Borrowing  Money.  4.  Limita- 
tions on  the  Power  to  Create  Debts.  5.  Rewards  for  Offend- 
ers. 6.  Public  Buildings.  7.  Police  Powers  and  Regula- 
tions. 8.  Prevention  of  Fires.  9.  Quarantine  and  Health. 
10.  Indemnifying  Officers.     11.  Furnishing  Entertainments. 

•  Ante,  chaps.  L,  II. ;  supra,  sees.  63, 64. 

8  Ante,  sec.  19. 

1  Aurora  v.  West,  9  Ind.  74,  1857;  ante,  ehap.  IV. 


Ch.  VI.]  MUNICIPAL    CHARTERS.  189 

12.    Impounding  Animals.     13  Party  Walls.     14.    Public 
Defence.     15.  Aid  to  Railway  Companies. 

Wharves. 

%  67.  Among  the  powers  of  a  special  and  extra-municipal 
nature  frequently  conferred  by  the  legislature  upon  muni- 
cipal corporations  bordering  upon  the  high  seas  or  navi- 
gable waters,  is  the  authority  to  erect  wharves,  and  charge 
wharfage  as  a  compensation  for  keeping  the  same  and  their 
approaches  in  a  proper  and  safe  condition  for  the  landing, 
loading,  and  unloading  of  vessels.1  The  authority  of  the 
State  over  navigable  waters,  and  the  shores,  is,  of  course, 
subject  to  the  constitution  of  the  United  States,  and  the 
laws  made  in  pursuance  thereof  regulating  commerce,  and 
the  admiralty  jurisdiction  of  the  federal  courts.2  But  al- 
though the  power  to  erect  wharves  and  charge  wharfage  is 
not  strictly  one  relating  to  municipalities,  it  is,  nevertheless, 
competent  for  the  legislature  to  make  them,  in  such  measure 
as  it  deems  expedient,  the  repository  of  it.8 

1  Commonwealth  v.  Alger,  7  Cush.  53,  82,  1851;  Pollard's  Lessee  v.  Ha- 
gan,  3  How.  (U.  S.)  212;  Municipality®.  Pease,  2  La.  An.  538,  1847;  Wors- 
ley  v.  Municipality,  9  Rob.  (La.)  324;  New  Orleans  v.  United  States,  10  Pet. 
662,  737;  The  Wharf  Case,  3  Bland  Ch.  (Md.)  383;  III.  &c.  Co.  v.  St. 
Louis,  2  Dillon  C.  C.  R.,  70,  1872. 

*  State  and  authorized  municipal  pilot  and  harbor  regulations,  when  not 
in  conflict  with  the  federal  constitution  or  federal  legislation,  are  valid. 
Steamship  Co.  v.  Joliffe,  2  Wall.  450;  Cooley  e.  Board  of  Wardens,  12  How. 
(U.  S.)  296;  Pollard's  Lessee  v.  Hagan,  3  lb.  212;  Cisco  v.  Roberts,  36 
N.  Y.  292;  Port  Wardens  v.  Ship,  &c,  14  La.  An.  289,  1859;  Same  v.  Pratt, 
10  Rob.  (La.)  459;  Chapman  v.  Miller  (pilotage  fee),  2  Speers  (South  Car.) 
Law,  769 ;  Alexander  v.  Railroad  Co.  (duty  on  tonnage),  3  Strob.  (South 
Car.)  Law,  594,  1847;  State  v.  City  Council,  4  Rich.  (South  Car.)  Law, 
286;  Commonwealth  v.  Alger,  7  Cush.  53,  82,  1850;  Worsley  v.  Munici- 
pality, above  cited;  Jefferson ville  v.  Ferry  Boat,  35  Ind.  19,  1870.  But 
state  enactments,  which  amount  to  a  regulation  of  commerce  or  impose  a 
duty  on  tonnage  are,  of  course,  void.  Steamship  Co.  v.  Port  Wardens,  6 
Wall.  31,  1867.  See,  also,  United  States  v.  Duluth,  1  Dillon  C.  C.  469; 
Packet  Co.  v.  Atlee,  2  Dillon  C.  C.  R.,  1873i 

•  Fuller*.  Edings,  11  Rich.  (South  Car.)  Law,  239,  1858;  Waddington 
o.  St.  Louis,  14  Mo.  190,  1851;  Baltimore  v.  White,  2  Gill.  (Md.)  444, 1845; 
Wilson  v.  Inloes,  11  Gill.  &  J.  (Md.)  351.  The  owner  of  a  private  wharf, 
whose  land  is  compulsorily  taken  for  a  public  wharf,  is  not  necessarily  en- 


190 


MUNICIPAL     CORPORATIONS. 


[Ch.  VL 


It  may  authorize  a  municipal  corporation  to  establish  a 
public  wharf  upon  private  property  on  making  compensa- 
tion to  the  owner  of  the  land  ;  and  the  power,  when  con- 
ferred upon  the  municipality,  cannot  be  arrested  by  an 
offer  on  the  part  of  the  land-owner  himself  to  erect  a 
wharf. ' 

§  68.  Wharves,  piers,  quays,  and  landing  places,  may 
be  either  public  or  private.  They  may  be,  in  their  nature, 
public,  although  the  property  be  owned  by  an  individual. 
If  private,  the  public  have  no  right  to  use  the  erection  with- 
out the  owner's  consent,  express  or  implied  ;  if  public,  they 
may  be  used  by  persons  generally  upon  the  payment  of  a 
reasonable  compensation.  Whether  they  are  public  or 
private  depends,  in  case  of  dispute,  upon  circumstances, 
such  as  the  purpose  for  which  they  were  built,  the  uses  to 
which  they  have  been  applied,  the  place  where  located,  and 
the  character  of  the  structure.11 


§  69.  The  keeping  of  a  wharf  or  dock,  erected  and 
opened  to  the  public,  like  the  keeping  of  an  inn,  confers  a 
general  license  to  boats  and  vessels  to  occupy  it  for  lawful 
purposes — a  license  which  can  only  be  terminated  by 
notice  and  request  to  remove  the  vessel.'    When  thus  es- 

titled  to  be  compensated  for  loss  of  income  from  his  private  wharf,  resulting 
in  the  establishment  of  the  public  wharf  near  to  the  private  one.  Fuller  v. 
Edings,  supra.  The  grant  of  an  exclusive  right  to  keep  a  wharf,  in  order 
to  secure  its  erection,  does  not  violate  the  provision  of  a  state  constitution, 
declaring  "  that  no  man  or  set  of  men  are  entitled  to  exclusive,  separate, 
public  emoluments  or  privileges  from  the  community,  but  in  consideration 
of  public  services."  Such  an  improvement  is  beneficial  to  the  public,  and, 
in  order  to  secure  it,  the  exclusive  profits  for  a  given  period  may  be  granted 
to  the  contractor.  Martin  v.  O'Brien,  34  Miss.  (5  George)  21,  1857;  see,  also, 
Geiger  v.  Filor,  8  Flor.  325,  1859. 

1  Waddington  v.  St.  Louis,  above  cited;  Iron  R.  R.  Co.  v.  Ironton,  19 
Ohio  St.  299,  1869;  Page  v.  Baltimore,  34  Md.  558,  1871;  State  v.  Jersey 
City,  34  N.  J.  Law,  390. 

"  Dutton  v.  Strong,  1  Black  (U.  S.)  23,  1861.  The  owner  of  a  private 
pier  may,  it  was  held  in  this  case,  cut  loose  a  vessel  attached  to  it  without 
a  license  if  the  pier  be  thereby  endangered,  no  matter  how  great  the  stress 
of  the  weather  or  the  peril  to  which  the  vessel  may  be  thereby  subjected. 

"  Heeney  v.  Heeney,  2  Denb,  625;    Nicoll    v.  Gardner,  13  Wend.  289,, 


Ch.  VI.]  MUNICIPAL     CHARTERS.  191 

tablished,  the  owner  at  common  law  is,  as  respects  the  pub- 
lic, bound  to  keep  it  in  good  repair.  In  view  of  these 
obligations  on  the  part  of  the  owner  of  the  wharf,  the  com- 
mon law  gave  him  the  right  to  distrain  for  his  wharfage  or 
toll.' 

§  70.  By  the  common  law,  the  riparian  owner  has  the 
right  to  establish  a  wharf  on  his  own  soil,  this  being  a  law- 
ful use  of  the  land.4  The  right  is  judicially  recognized  in 
this  country,  and  riparian  proprietors  on  ocean,  lake,  or 
navigable  river,  have,  in  virtue  of  their  proprietorship,  and 
without  special  legislative  authority,  the  right  to  erect 
wharves,  quays,  piers,  and  landing  places  on  the  shore,  if 
these  conform  to  the  regulations  of  the  state  for  the  protec- 
tion of  the  public,  and  do  not  become  a  nuisance  by  ob- 
structing the  paramount  right  of  navigation.  This  right 
has  been  exercised  by  the  owners  of  the  adjacent  land  from 
the  first  settlement  of  the  country.  The  right  terminates 
at  the  point  of  navigability,  unless  special  authority  be  con- 
ferred, because  at  this  point  the  necessity  for  such  erections 
ordinarily  ceases.  Such  structures  are  presumptively  law- 
ful where  they  are  confined  to  the  shore,  and  no  positive 
law  is  violated  in  their  erection.* 

1835;  Lansing  v.  Smith,  4  "Wend.  9;  Dutton  v.  Strong,  1  Black,  23,  dis- 
tinguished from  Heeney  v.  Heeney,  supra. 

1  Hale  de  Port.  Maris,  77;  Bradley  on  Distress,  133;  Nicoll  v.  Gardner, 
13  Wend.  289.  The  right  of  distress  is  regulated  by  statute  in  the  city  of 
New  York,  and  it  was  there  held,  that  where  wharfage  accrued  in  the 
seventh  ward,  the  owner  of  the  wharf  might  distrain  therefor  in  the 
eleventh  ward.  13  Wend.  289.  See  Lansing  v.  Smith,  4  Wend.  9,  21. 
Wharfage  is  not  properly  a  tax,  like  that  levied  to  support  government, 
but  rather  compensation  paid  by  owners  of  vessels  for  accommodation  for 
their  boats  and  merchandise.  Swartz  v.  Flatboats,  14  La.  An.  243,  1859. 
If  a  city  is  entitled  to  the  wharfage  from  public  wharfs,  and  the  owner  of 
a  lot  adjacent  to  such  wharf  receives  wharfage,  he  is  liable  to  the  city 
therefor.  Baltimore  v.  White  (assumpsit),  2  Gill  (Md.)  444.  The  right,  as 
between  private  persons  and  a  city  corporation,  to  the  moneys  collected 
for  wharfage,  may  be  tried  in  an  action  for  money  had  and  received. 
Murphy  v.  City  Council,  11  Ala.  586,  1847.  See  Grant  v.  Davenport,  18 
Iowa,  179. 

*  Nicoll  v.  Gardner,  13  Wend.  289,  1835,  per  Nelson,  J. ;  Lansing  t>. 
Smith,  4  Wend.  9,  affirming  S.  C,  8  Cow.  146;  Heeney  v.  Heeney,  2  Denio, 
625. 

3  Heeney  v.  Heeney,  2  Denio,  625 ;  Dutton  v.  Strong  (action  of  trespass 


192  MUNICIPAL     CORPORATIONS.  [Ch.  VL 

§  71.  The  right  of  riparian  proprietors,  in  respect  to 
the  erection  of  wharves,  are  subject  to  such  reasonable  lim- 
itations and  restraints  as  the  legislature  may  think  it  neces- 
sary and  expedient  to  impose.  Therefore  it  is  competent 
for  the  legislature  to  pass  acts  establishing  harbor  and  dock 
lines,  and  to  take  away  the  right  of  the  proprietors  to 
build  wharves  on  their  own  land  bej7ond  the  lines,  even 
when  such  wharves  would  be  no  actual  injury  to  naviga- 
tion.1 

by  owner  of  vessel  against  owner  of  private  pier  for  cutting  the  vessel 
loose),  1  Black  (U.  S.)  23,  1861,  distinguished  from  Heeney  v.  Heeney, 
above  cited.  Same  principle  reaffirmed,  Railroad  Co.  v.  Schurmier.  7 
Wall.  272 ;  Yates  v.  Milwaukee,  10  Wall.  497 ;  State  v.  Jersey  City,  1  Dutch. 
(N.  J.)  525,  530;  Wetmore  v.  Brooklyn  Gas  Co.,  42  N.  Y.  384 ;  Galveston  v. 
Menard,  23  Texas,  349;  Grant  v.  Davenport,  18  Iowa,  179,  per  Wright,  J. 
But  in  California,  see  Dana  v.  Jackson,  &c.  Co.  31  Cal.  118.  As  to  right 
to  erect  wharf  by  other  than  riparian  owner,  on  a  tidal  river,  below  high 
water  mark,  qu(ere,see  Hagan  v.  Campbell,  8  Port.  (Ala.)  9.  In  this  case  it 
is  said  :  "It  is  clear  tliat  no  part  of  such  erections  can  be  rested  upon  the 
lands  of  the  riparian  proprietor,  nor  can  he  be  excluded  from  the  use  of  the 
water,  or  denied  other  riparian  rights."  See  People  v.  Davidson,  30  Cal. 
379;  Packet  Co.  v.  Atlee,  2  Dillon  C.  C.  R.,  1873. 

1  Commonwealth  v.  Alger,  7  Cush.  53,  1851.  This  subject  is  here  very 
fully  and  learnedly  discussed  and  examined.  See,  also,  Hart  v.  Mayor,  9 
Wend.  571,  valuable  case,  affirming  3  Paige,  213;  Wetmore  v.  Brooklyn 
Gas  Co.,  42  N.  Y.  384;  People  v.  Vanderbilt,  26  N.  Y.  287;  Same  v.  Same, 
28  N.  Y.  396;  Pollard's  Lessee  v.  Hagan,  3  How.  (U.  S.)  212;  Hagan  v. 
Campbell,  8  Port.  (Ala.)  9 ;  Mobile  v.  Eslava,  9  Port.  (Ala.)  577,  1839 ; 
Railroad  Co.  v.  Winthrop,  5  La.  An.  36.  In  Yates  v.  Milwaukee,  10  Wall. 
497,  Mr.  Justice  Miller,  on  behalf  of  the  court,  speaking  of  an  exiating 
wharf,  denied  that  the  city  of  Milwaukee,  under  the  power  to  establish  dock 
and  wharf  lines,  could  create  an  artificial  and  imaginary  dock  line,  hun- 
dreds of  feet  away  from  the  navigable  part  of  the  river,  and  without 
making  the  river  navigable  up  to  that  line,  deprive  the  riparian  owners  of 
the  right  to  avail  themselves  of  the  advantages  of  the  navigable  channel 
by  building  wharves  and  docks  to  it  for  that  purpose,  and  said,  that  if  the 
city  deemed  the  removal  of  the  wharf  in  question  necessary  in  the  prosecu- 
tion of  any  general  scheme  of  widening  the  channel  or  improving  the  navi- 
gation of  the  river,  it  must  first  make  the  owner  compensation  for  his  prop- 
erty thus  taken  for  the  public  use. 

Municipal  control,  under  legislative  grant,  over  right  of  riparian  owner 
to  wharf  out:  Baltimore  v.  White,  2  Gill  (Md.)  444,  1845;  Wilson  t>.  Inloes, 
11  Gill  &  J.  (Md.)  351.  Where,  under  acts  of  the  legislature,  a  city  had 
the  power  to  refuse  assent  to  riparian  owners  to  erect  wharves,  or  to  allow 
it  upon  such  terms  as  they  deemed  beneficial  to  navigation  and  the  use  of 


Ch.  VI.]  MUNICIPAL     CHARTERS.  193 

§  72.  While  the  riparian  proprietor  has  the  right  to 
erect  wharves,  which  are  private  in  their  nature,  but  which 
may  be  nsed  by  the  public  by  the  consent  of  the  owner, 
express  or  implied,  the  right  to  erect  public  wharves  and  to 
demand  tolls  or  fixed  rates  of  wharfage  is,  according  to  the 
better  view,  a  franchise,  which  must  have  its  origin  in  a  leg- 
islative grant.1 

§  72.  If  a  municipality  is  itself  a  riparian  piroprietor, 
this  will  probably  give  to  it,  in  the  absence  of  any  restrictive 
provision  iu  its  organic  act,  the  implied  authority  to  erect  a 
wharf  thereon,  and  it  wonld  have  the  incidental  right,  the 
same  as  a  private  owner,  to  charge  compensation  for  its  use." 

the  port  of  that  city,  it  was  held,  that  the  city  might  make  the  grant  of  the 
right  to  erect  a  wharf  upon  the  condition  that  its  exterior  margin  should 
constitute  a,  public  wharf.     Baltimore  e.  White,  supra. 

1  People  v.  Wharf  Company,  31  Cal.  34;  The  Wharf  Case,  3  Bland  Ch. 
(Md.)  383;  Wiswall  v.  Hall,  3  Paige  Ch.  313;  Houck  on  Rivers,  sec.  282; 
Thompson  v.  Mayor,  11  N.  Y.  115.  See,  as  to  navigator's  right  to  moor 
and  land,  Bainbridge  v.  Sherlock,  29  Ind.  364;  Talbott  v.  Grace,  30  Ind. 
389;  Jeffersonville  v.  Ferry  Company,  27  Ind.  100;  S.  C,  35  Ind.  19,  1870.' 
State  Courts  have  jurisdiction  of  suits  for  wharfage  against  domestic  ves- 
sels, lb.  35  Ind.  19,  23;  The  Phebe,  Ware  Rep.  360;  Russel  v.  The  Swift, 
Newb.  R.  553 ;  ex  parte  Lewis,  2  Gallis.  483. 

2  Murphy  v.  City  Council,  11  Ala.  586,  1847.  The  court  say:  "The  title 
to  the  wharf  is  in  the  city,  and,  such  being  the  fact,  it  had  the  same  right 
as  any  other  proprietor  to  collect  wharfage  from  those  landing  goods  there. 
This  right,  resulting  from  its  proprietary  interest,  is  not  a  franchise,  but  a 
right  of  property."  lb.  per  Ormond,  J.,  p.  558.  The  city  of  Boston  has, 
under  the  laws  of  Massachusetts,  the  same  rights  as  other  littoral  proprie- 
tors, and  was  held  not  to  dedicate  a  dock,  which  it  owned,  to  the  public, 
by  merely  abstaining  from  any  control  over  it.  The  court  observe:  "  The 
people  of  Boston,  who  owned  the  land  as  their  common  and  private  prop- 
erty, acted  through  a  corporation  (the  city),  whose  corporate  grants  and 
licenses  are  matters  of  record.  Their  own  use  of  their  own  property  for 
their  own  benefit  cannot  be  called  a  dedication  of  it  to  any  other  public  oj 
wider  extent.  Whether  it  was  called  "  town  dock  "  or  "public  dock  "  (which 
were  used  as  synonymous  terms),  it  would  furnish  no  ground  to  presume 
that  they  had  parted  with  their  right  to  govern  and  use  it  in  the  manner 
most  beneficial  to  the  people  or  public  of  the  town  or  city."  Boston  v.  Le- 
craw,  17  How.  (U.S.)  426,  1854,  Commonwealth  v.  Roxbury,  9  Gray,  514, 
519,  and  note.  Bona  fide  purchaser  of  a  wharf  in  the  city  of  Baltimore, 
erected  under  contract  with  the  city,  and  in  which  the  city  had  certain 
rights,  held  affected,  with  notice  of  those  rights.  Baltimore  «.  White,  2 
Gill  (Md.)  444. 

13 


194  MUNICIPAL    CORPORATIONS.  [Ch.  VL 

Its  rights  would  be  the  same  as  those  of  any  similar  pro- 
prietor, and  no  greater,  unless  enlarged  by  legislative  grant. 

§  74.  All  the  powers  of  a  municipality  in  respect  to 
wharves  and  docks,  must,  like  all  its  other  powers,  be  derived 
from  the  legislature.1  In  regard  to  private  wharves  lawfully 
erected,  the  municipal  authorities  have  only  such  powers  of 
local  regulation  and  government  as  their  charters  or  con- 
stituent acts,  in  general  or  special  terms,  confer  upon  them.8 
Their  own  right  to  erect  wharves  may  be  express  or  implied. 
The  power,  even  when  conferred  in  terms,  is,  like  other 
powers,  to  be  construed  somewhat  strictly  when  it  affects 
private  rights,  but  not  so  strictly  as  to  defeat  the  purpose 
of  the  grant.'     Thus,  although  the  corporate  boundaries 

1  Snyder©.  Rockport,  6  Ind.  (Porter)  237,  1855;  Railroad  Company  v. 
Winthrop,  4  La.  An.  36 ;  State  v.  Jersey  City,  34  N.  J.  Law,  31.  While  a 
city  may  be  enjoined,  at  the  instance  of  a  tax-payer,  from  raising  taxes  or 
appropriating  money  for  the  unauthorized  construction  of  a  wharf,  it  will 
not  be  restrained  from  exercising  a  clear  power  to  grade  streets,  merely  be- 
cause, by  such  grading,  a  wharf  at  the  river  end  of  the  street  will  incident- 
ally result.  Snyder  «.  Rockport,  above  cited.  As  to  right  of  municipal 
corporation  to  erect,  or  allow  others  to  erect,  wharf  at  terminus  of  street, 
see  Doe  v.  Jones,  11  Ala.  63.  In  Galveston  v.  Menard,  23  Texas,  349,  1859, 
the  right  of  the  city,  under  a  grant  from  the  legislature  to  build  and  con- 
trol wharves  in  front  of  the  streets  is  affirmed.  In  Newport  v.  Taylor,  16  B. 
Mon.  699,  1855,  it  was  decided  that  the  city  might  build  wharves  on  prop- 
erty dedicated  as  a  "  common,"  along  a  navigable  river.  See  also,  Louis- 
ville v.  Bank,  3  B.  Mon.  144;  Kennedy  v.  Covington,  8  Dana,  61.  The  city 
of  Dubuque,  under  its  charter,  was  held  to  have  power  to  prohibit  all  per- 
sons, including  riparian  owners,  from  using  any  place  but  the  public  wharf 
without  paying  wharfage.     Dubuque  v.  Stout,  32  Iowa,  80. 

1  Grant  v.  Davenport,  18  Iowa,  179,  1865.  Where  the  charter  of  a  city 
authorizes  it  "  to  regulate  the  erection  and  repair  of  private  wharves  and 
the  rates  of  wharfage  thereat,"  "  the  city,"  says  Wright,  C.  J.,  "  may  regu- 
late, but  not  destroy;  may  exercise  control  as  over  other  private  property 
within  its  limits,  but  not  to  the  extent  of  appropriating  the  use  and  enjoy- 
ment thereof  to  the  public  without  compensation.  75.  Liability  of  city 
corporation  for  an  injury  to  a  private  wharf,  caused  by  diverting  streams  of 
water  to  a  point  near  the  wharf,  thereby  causing  a  great  deposit  of  sand  and 
earth,  which  lessened  the  depth  of  water  at  the  wharf  and  impaired  its 
value.  Baron  v.  Baltimore,  3  Am.  Jurist,  203,  cited  and  approved  in  Stet- 
son v.  Faxon,  19  Pick.  147,  1858,  and  see,  also,  Thayer  v,  Boston,  19  Pick. 
510. 

'  As  to  the  extent  of  municipal  power  over  public  and  private  wharves, 
and  the  respective  rights  of  the  riparian  owner  and  municipal  authorities. 


Ch.  VI.]  MUNICIPAL     CHARTERS.  I95 

may  by  the  charter  be  extended  to  low  water  mark,  and  the 
corporation  has  express  power  "to  regulate  the  erection 
and  occupation  of  all  wharves  or  levees  within  the  corporate 
limits,"  this  does  not  give  the  corporation  as  against  the 
riparian  proprietor  (whose  right  was  construed  to  extend  to 
low  water  mark),  the  power  to  control  the  river  bank  so  as 
to  require  such  proprietor  or  his  lessee  to  take  out  a  license 
for  his  wharf- boat,  fastened  to  the  shore  of  his  own  land, 
and  used  for  business  purposes.1 

§  75.  So  where  a  riparian  proprietor  had  constructed  a 
wharf  which  extended  to,  but  did  not  encroach  upon,  the 
navigable  part  of  the  river,  and  which  was  not  shown  to  be 
a  nuisance  in  fact,  it  was  held  by  the  Supreme  Court  of  the 
United  States  that  the  city  within  which  the  wharf  was 
situated  could  not,  under  the  charter  power  to  establish 
dock  and  wharf  lines  and  restrain  and  prevent  encroach- 
ments upon  the  river  and  obstructions  thereto,  pass  an 
ordinance  declaring  the  wharf  to  be  an  obstruction  to  navi- 
gation, and  a  nuisance,  and  ordering  it  to  be  summarily 
abated.5 

concerning  wharves  and  wharfage:  Grant  v.  Davenport,  18  Iowa,  179, 1865; 
Cincinnati  v.  Walls,  1  Ohio  St.  222 ;  Muscatine  v.  Hershey,  18  Iowa,  39 ;  Gal- 
veston v.  Menard,  23  Texas,  348;  Baltimore  v.  White,  2  Gill  (Md.)  444, 1845; 
Furrnan  v.  New  York,  5  Sandf.  S.  C.  16;  affirmed,  10  N.  T.  567;  Dugan  v. 
Baltimore,  5  Gill  &  Johns.  (Md.)  357,  1833;  reversing  S.  C,  3  Bland  Ch.  361 ; 
Wilson  v.  Inloes,  11  Gill  &  Johns.  (Md.)  358;  Shepherd  v.  Municipality,  6 
Rob.  (La.)  349 ;  Columbus  0.  Grey,  2  Bush  (Ky.)  476 ;  Kennedy  v.  Coving- 
ton, 17  B.  Mon.  567  ;  Commissioners  v.  Neil,  3  Yeates  (Pa.)  54;  Richardson 
v.  Boston,  24  How.  (U.  S.)  188;  S.  C,  19  lb.  263;  17  lb.  426;  Newport  v. 
Taylor,  16  B.  Mon.  699,  1855 ;  Commonwealth  v.  Roxbury,  9  Gray,  514, 
519,  and  note  by  Mr.  (since  Judge)  Gray;  Trowbridge  v.  Mayor  (right  of 
Albany  under  Dongan  charter),  7  Hill  (N.  Y.)  429;  S.  C,  5  lb.  71 ;  Hart  v. 
Mayor,  9  Wend.  571;  Lansing  v.  Smith,  4  Wend.  4;  Thompson  v.  Mayor, 
11  N.  Y.  115;  Marshall  v.  Guion,  lb.  461;  Corporation  v.  Scott,  1  Caines, 
543.     Principles  of  construction,  ante,  sec.  55,  and  notes. 

The  powers  of  a  municipality  in  respect  to  wharfage  are  subject  to  the 
unlimited  control  of  the  legislature,  exeept  so  far  as  the  rights  of  creditors 
may  be  impaired.  St.  Louis  v.  Shields,  Sup.  Ct.  of  Mo.,  1873,  not  yet  re- 
ported.    Ante,  sec.  41. 

1  McLaughlin  v.  Stevens  18  Ohio,  94, 1849;  Blanchard  v.  Porter  (extent 
of  riparian  right),  11  Ohio,  138,  144;  Muscatine  v.  Hershey,  18  Iowa,  89; 
Martin  v.  Evansville,  32  Ind.  85,  1869. 

5  Yates  v.  Milwaukee,  10  Wall.  497,  1870. 


196  MUNICIPAL     CORPORATIONS.  [Ch.  VL 

§  76.  If  the  right  to  impose  wharfage  is  given  to  a  muni- 
cipality, but  not  limited,  the  question  of  the  amount  which 
the  municipal  authorities  may  exact  is  confided  to  their  dis- 
cretion, and  is  one  with  which  the  courts  cannot  interfere,1 
unless,  perhaps,  in  a  case  where  the  by-law  imposing  it  is 
plainly  unreasonable.  But  the  amount  of  tolls  or  wharfage 
may,  of  course,  be  regulated  by  the  legislature." 

§  77.  The  interests  of  commerce  imperatively  require 
that  public  wharves  should  be  in  a  safe  condition;  and  if  a 
municipal  corporation  is  in  possession  of  such  a  wharf  and 
exercises  control  over  it,  and  receives  tolls  for  its  use,  it 
owes  a  duty  to  the  public  to  keep  it  in  proper  and  secure 
condition  for  use,  and  it  is  liable,  without  statutory  enact- 
ment to  that  effect,  to  an  action  for  any  special  injuries  to 
boats  and  vessels  caused  by  its  failure  to  discharge  this 
duty.  In  such  a  case  it  is  not  material  whether  the  city  had 
adopted  ordinances  for  the  regulation  of  the  wharf,  or,  hav- 
ing such,  neglected  to  enforce  them,  as  in  either  event  the 
responsibility  is  the  same.8 

1  Municipality  v.  Pease,  2  La.  An.  538,  1847;  Muscatine  v.  Hershey,  18 
Iowa,  39,  42,  1864,  per  Wright,  J. 

8  Baltimore  v.  White,  2  Gill  (Md.)  444,  1845;  Murphy  v.  City  Council, 
11  Ala.  586,  1847.  Authority  to  a  city  "to  erect,  repair,  and  regulate 
wharves  and  the  rates  of  wharfage,"  authorizes  it  to  collect  wharfage  upon 
goods  landed  on  the  bank,  the  space  in  front  of  the  city  being  dedicated  to 
the  public,  although  no  artificial  wharf  was  erected.  Sacramento  v.  Steamer, 
4  Cal.  41.  This  subject  is  discussed  by  Wright,  J.,  in  Muscatine  v.  Hershey, 
18  Iowa,  39,  but  the  point  is  not  decided  by  the  court.  Dubuque  v.  Stout, 
32  Iowa,  47,  80,  1871.  In  Kentucky,  however,  it  is  held  that  the  owner  of 
the  land  must  build  wharves,  or  improve  the  shore,  or  make  some  prepara- 
tion for  the  reception  or  delivery  of  goods,  or  accommodation  of  vessels, 
before  he  is  entitled  to  collect  tolls  or  wharfage.  Columbus  ».  Grey,  2  Bush 
(Ky.)  476.  If  he  permits  the  municipal  authorities  to  so  improve  the 
wharves,  he  will  only  be  entitled  to  reasonable  compensation  for  the  use  of 
the  river  bank.  lb.  The  word  "quay"  defined  by  McLean,  J.,  in  New 
Orleans  v.  United  States,  10  Pet.  661,  715. 

*  Pittsburg  v.  Grier,  22  Pa.  St.  54,  1853.  "  This  case,"  s&ja Perley,  C.  J., 
in  Eastman  v.  Meredith,  36  N.  H.  284,  295,  "is  put  distinctly  upon  the 
ground  that  the  public  duty,  which  was  the  foundation  of  the  action,  arose 
out  of  the  control  which  the  city  exercised  over  the  wharf,  and  the  income 
received  for  the  use  of  it."  That  the  right  to  collect  wharfage  by  the  city 
imposes  the  duty  to  keep  in  repair,  and  a  correlative  liability,  has  been  often 


Ch.  VI.]  MUNICIPAL     CHARTERS.  197 


Ferries. 

§  78.  It  is  not  unusual  for  the  legislature  to  make  to  a 
municipal  corporation  a  more  or  less  extensive  grant  res- 
pecting ferries  and  ferry  franchises.  Such  a  grant  is  not, 
unless  otherwise  expressed,  a  compact  which  cannot  be  im- 
paired, but,  in  the  nature  of  a  public  law,  subject  to  be 
repealed  or  changed,  as  the  public  interests  may  demand.1 
If  the  legislature  has  conferred,  as  in  some  of  the  ancient 
charters  in  England  and  in  this  country,  upon  a  municipal 
corporation,  its  whole  power,  to  establish  and  regulate 
ferries  within  the  corporate  limits,  the  corporation  thus  rep- 
resenting the  sovereign  power  may  make  an  exclusive 
grant."  But  such  a  corporation  has  not  an  exclusive  power 
>ver  the  subject,  unless,  by  express  words  or  necessary  in- 
lerence,  it  be  plainly  and  clearly  given  to  it  by  the  legisla- 
ture. Hence,  power  to  a  municipality  to  establish  and 
regulate  ferries  within  its  limits,  does  not  give  it  an  exclusive* 
power,  and  consequently  does  not  authorize  it  to  confer  an 
exclusive  privilege  upon  others  to  establish  a  ferry. 3 

determined.  Shinkle  v.  Covington,  1  Bush  (Ky.)  617,  where  there  was  a 
failure  to  provide  proper  fastenings  for  boats.  People  v.  Albany,  11  "Wend. 
539,  543;  Buckbee  v.  Brown,  21  Wend.  110;  Mersey  Dock  Trustees©.  Gibbs, 
1  Law  R.  H.  L.  93.  Lessee  of  city  is  under  like  liability.  Radway  v.  Briggs, 
37  N.  Y.  256.  1867.  In  form,  the  action  in  such  a  case  against  the  city  may 
be  either  case  or  assumpsit.  Pittsburg  v.  Grier,  22  Pa.  St.  54,  1853.  But  it 
is  no  defence  to  an  action  by  a  city  for  wharfage,  that  the  wharf  is  not  well 
built  and  needed  further  improvement  or  repairs.  Prescott  v.  Duquesne,  48 
Pa.  St.  118;  Jeffersonville  v.  Ferry  Company,  27  Ind.  100;  Same  case, 
35  Ind.  19,  1870;  Winpeuny  v.  Phila.,  65  Pa.  St.  135,  1870.  Where  it  was 
rendered  unsafe  by  acts  of  others,  notice,  express  or  implied,  is  an  element 
necessary  to  liability,  the  same  as  in  the  case  of  defective  highways.  Sea- 
man v.  New  York,  3  Daly  (N.  Y.)  147.     Post,  sec.  789. 

1  East  Hartford  v.  Hartford  Bridge  Co.,  10  How.  (U.  S.)  511,  1850. 
Ante,  sec.  40.  As  to  extinguishment  of  ferry  franchise  by  a  subsequent 
legislative  grant  to  build  a  bridge  at  the  site  of  the  ferry,  and  take  tolls, 
see  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  (U.  S.)  420,  1837.  Con- 
struction of  special  grant,  Hartford  Bridge  Co.  v.  Perry  Co.,  29  Conn.  210. 

8  Costar  v.  Brush,  25  Wend.  628,  1841. 

8  Minturn  v.  Larue,  23  How.  (U.  S.)  435,  1859;  Harrison  v.  State,  9  Mo. 
526,  1845 ;  McEwen  v.  Taylor,  4  G.  Greene  (Iowa)  532.    Ante,  sec.  55,  note. 


198  MUNICIPAL    CORPORATIONS.  [Ch.  VI. 

§  79.  By  its  cliarter,  a  city  was  empowered  "to  license, 
continue,  and  regulate,"  as  many  ferries  within  its  limits, 
to  the  opposite  shore  of  a  river  bounding  it,  as  the  public 
good  required,  and  the  common  council  were  further 
authorized  "to  direct  the  manner  of  issuing  and  registering 
the  licenses,  and  to  prescribe  the  sum  of  money  to  be  paid 
therefor  into  the  treasury  of  the  corporation."  Under  this, 
an  ordinance  prohibiting  all  persons  from  ferrying,  without 
a  license  from  the  mayor,  and  authorizing  this  officer  to 
gr  mt  licenses  to  any  person  upon  payment  into  the  treasury 
of  the  city  of  the  sum  of  the  sum  of  fifty  dollars,  was  sus- 
tained against  the  objections  that  there  was  no  power  to 
prohibit  ferrying  without  a  license,  and  that  the  license 
fee  was  a  tax.  The  words  of  the  charter — "To  prescribe 
the  sum  of  money  to  be  paid  into  the  treasury  of  the  corpo- 
ration,"— were  regarded  by  the  court  as  showing  a  clear 
intent  to  make  licenses  a  source  of  revenue  to  the  city  ;  and 
the  court  added,  that  the  amount  charged  as  a  license  fee 
did  not  appear  to  be  unreasonable.1 

§  80.  If  a  municipal  corporation  seized  of  a  ferry,  lease 
the  same,  through  the  agency  of  the  mayor  and  aldermen, 
with  a  covenant  for  quiet  enjoyment,  this  covenant  will  not 
restrain  the  mayor  and  aldermen  from  exercising  the  powers 
vested  in  them  by  statute,  to  license  another  ferry  over  the 
same  waters,  if,  in  their  judgment  (which  cannot  be  re- 
viewed by  the  courts),  the  public  necessity  and  convenience 
require  it.  On  such  a  covenant  the  city  may  be  liable  to 
the  covenantees  ;  but  the  powers  vested  in  the  city  officers, 
as  trustees  for  the  public,  cannot  be  thus  abrogated.  If, 
however,  the  city,  in  its  corporate  capacity,  is  the  legal 
owner  of  an  exclusive  franchise,  its  grantees  or  lessees  would 
hold  it,  notwithstanding  any  license  to  others,  whether 
granted  by  the  mayor  and  aldermen  or  any  other  tribunal." 

1  Chilvers  v.  People,  11  Mich.  43.  1862.  As  to  distinction  between  a 
license  fee  and  a  tax,  see  Ash  v.  People,  11  Mich.  347,  and  the  chapters  on 
Ordinances  and  Taxation,  post,  sees.  291,  609.  Amount  of  license  city  may 
exact,  the  state  law  on  the  subject  being  held  to  affect  the  city,  Reddick  c. 
Amelia,  1  Mo.  5,  1821. 

5  Fay,  Petitioner,  15  Pick.  243,  1834.  The  court  will  not  try  on  cer- 
tiorari the  conflicting  titles  of  parties  to  a  ferry  franchise.  lb.  Ante,  chap, 
V.  sec.  61. 


Ch.  VI.]  MUNICIPAL    CHARTERS.  199 


Borrowing  Money. 

§  81.  We  will  hereafter  treat  of  the  implied  power  of 
municipal  corporations  to  issue  negotiable  securities.  But 
this  is  a  different  question  from  the  power  to  oorrow 
money.  The  power  to  borrow  may  be  given  in  express  lan- 
guage, in  which  case  the  terms  and  purpose  of  the  grant 
will  measure  its  extent.  But  suppose  the  power  is  not  ex- 
pressly conferred,  does  it  exist  by  implication  %  It  is  per- 
haps settled  law,  that  private  corporations,  organized  for 
pecuniary  profit,  have,  unless  specially  restricted,  an  in- 
cidental authority  to  borrow  money  for  their  legitimate 
purposes,  and  to  give  the  usual  obligations  for  its  re-pay- 
ment.1 The  question  of  the  implied  authority  of  municipal 
corporations  to  borrow  money  has  not,  perhaps,  been  so 
often  or  so  thoroughly  considered  as  to  be  entirely  closed 
to  controversy.     In  view  of  the  legislative  practice  to  confer, 

Rights  of  municipal  corporations  in  connection  with  ferries  and  extent 
of  legislative  control;  see  Fanning  v.  Gregoire  et  al.,  16  How.  CU.  S.)  524, 
1853;  East  Hartford  v.  Hartford  Bridge  Co.,  10  lb.  511;  affirming  S.  C,  16 
Conn.  149;  17  Conn.  80,  96;  Chilvers  v.  People,  11  Mich.  43;  O'Neill®. 
Police  Jury,  21  La.  An.  586;  Aiken  v.  Railroad  Co.,  20  N.  Y.  370,  1859, 
relating  to  the  ferry  rights  of  the  city  of  Albany ;  Benson  v.  Mayor,  &c.  of 
New  York,  10  Barb.  223;  Harris  v.  Nesbit,  24  Ala.  398;  United  States  v. 
Fanning,  Morris  (Iowa),  348;  Conner  v.  New  Albany,  1  Blackf.  (Ind.)  43; 
City  v.  Ferry  Co.,  27  Ind.  100;  Shallcross  v.  Jefferson ville,  26  Ind.  193.  The 
right  of  a  city,  given  by  charter,  to  license  and  tax  ferries,  is  not,  unless  so 
expressed,  exclusive  of  a  like  right  in  the  state  or  county.  Harrison  v. 
State,  9  Mo.  526,  1845.  "Power  to  regulate  ferries,"  given  to  municipal 
corporations  in  general  incorporation  act,  construed,  Duckwall  v.  New 
Albany,  25  Ind.  283.  When  equity  will  annul  lease,  Phillips  v.  Blooming- 
ton,  1  G.  Greene  (Iowa)  498.  Upon  division  of  an  old  town  owning  ferry 
franchise,  the  new  town  owns  no  interest  therein  except  so  far  as  conferred 
by  the  legislature.  Hartford  Bridge  Co.  v.  East  Hartford,  16  Conn.  149; 
post,  Chap.  VII. 

'  Stratton  v.  Allen,  16  N.  J.  Eq.  229;  see  ante,  sec.  27,  and  chapter  on 
Contracts,  post,  sec.  407.  But  see  observations  of  Byles,  J.,  in  Bateman  v. 
Mid- Wales  Railway  Co.,  Law  Rep.  1  C.  P.  510,  1866,  as  to  powers  of  com- 
mon-law corporations  in  respect  to  drawing,  accepting,  or  indorsing  nego 
tiable  securities.  The  court  in  this  case  deny  (in  the  absence  of  express 
legislative  authority  conferring  the  power)  that  it  is  competent  to  a  com- 
pany incorporated  in  the  usual  way  for  the  formation  and  working  of  a 
railway  to  draw,  accept,  or  indorse  bills  of  exchange. 


200  MUNICIPAL     CORPORATIONS.  [Ch.  VI. 

in  terms,  all  powers  so  important  as  this,  the  dangerous 
nature  of  this  power  by  reason  of  the  temptation  it  holds 
out  to  incur  needless  debts  and  to  make  extravagant  ex- 
penditures, and  the  facilities  it  offers  for  frauds,  and  the 
settled  and  salutary  doctrine  that  such  corpora tious  have 
no  powers  but  such  as  are  expressly  conferred,  and  those 
which  are  necessary  to  effect  the  objects  of  the  corporation, 
and  those  which  are  incidental  to  the  express  grants,  the 
author  would  be  strongly  inclined  to  deny  the  existence  of 
an  implied  power  to  borrow  money.  But  it  must  be  ad- 
mitted that  the  few  express  adjudications  on  the  subject 
favor  the  contrary  opinion. 

§  82.  The  question  arose  in  Ohio,  in  1836,  and  was  fully 
argued  and  considered.  The  town  of  Chillicothe  possessed 
authority  to  purchase  real  estate,  erect  public  buildings, 
repair  streets,  and  the  usual  municipal  powers.  The  right 
to  borrow  money  was  not  expressly  granted,  and  the  only 
question  in  the  case  (an  action  upon  the  bonds  of  the  town 
given  for  borrowed  money)  was,  whether  it  was  granted  by 
implication.  The  case  was  regarded  as  of  the  first  impres- 
sion, no  authorities  in  point  being  produced.  The  court 
distinctly  decided,  that  in  carrying  out  the  express  powers, 
or  in  effecting  any  legitimate  municipal  object,  the  corpora- 
tion possessed  the  incidental  or  implied  right  to  borrow 
money.1  And  subsequently  the  Supreme  Court  of  Wis- 
consin affirmed  the  implied  authority  of  a  municipal  cor- 
poration, as  incidental  to  the  execution  of  the  general 
powers  granted  by  its  charter,  and  in  the  absence  of  a  spe 
cial  restriction,  to  borrow  money  and  issue  its  bonds  there- 
for, it  appearing  that  the  proceeds  thereof  went  into  the 
treasury  of  the  city  and  were  expended  by  it.a  "  The 
charter,"  says  the  court,  stating  its  reasons,  "does  confer 
the  power  to  purchase  fire  apparatus,  cemetery  grounds, 
etc.,  to  establish  markets,  and  to  do  many  other  things,  for 
the  execution  of  which  money  would  be  necessary  as  a 
means.     It  would  seem,  therefore,  that  in  the  absence  of  any 

1  Bank  «.  Chillicothe,  7  Ohio,  part  II.  p.  31,  1836. 

2  Mills  v.  Gleason,  11  Wis.  470,  1860;  S.  C,  8  Am.  Law  Reg.  692;  State 
p.  Madison,  7  Wis.  688;  Clark  v.  Janesville,  10  Wis.  136. 


Ch.  VI.]  MUNICIPAL     CHARTERS.  201 

restriction,  the  power  to  borrow  money  would  pass  as  an 
incident  to  these  general  powers,  according  to  the  well- 
settled  rule  that  corporations  may  resort  to  the  usual  and 
convenient  means  of  executing  the  powers  granted  ;  for 
certainly  no  means  is  more  usual  for  the  execution  of  such 
objects  than  that  of  borrowing  money."  In  this  case,  as  in 
the  other,  the  question  was  not  raised  until  the  money  had 
been  borrowed  and  the  right  of  third  persons  had  attached.1 

1  City  v.  Lamson,  9  Wall.  477,  486,  1869,  where  the  Wisconsin  cases  art* 
referred  to  by  fielson,  J.  Ante,  sec.  27,  and  notes.  The  right  of  private 
corporations  generally  to  borrow  money,  as  incidental  to  the  express  powers 
granted,  is  extensively  considered  upon  principle  and  authority  in  the  im- 
portant case  of  Curtis  v.  Leavitt,  15  N.  Y.  9,  1857.  See,  also,  Barry  v. 
Merch.  Ex.  Co.,  1  Sandf.  Ch.  280;  Beers  v.  Phoenix  Glass  Co.,  14  Barb. 
358;  Stratton  v.  Allen,  16  N.  J.  Eq.  229;  Lucas  v.  Pitney  (power  of  rail- 
road  company),  3  Dutch.  (N.  J.)  221 ;  Fay  v.  Noble  (manufacturing  cor- 
poration), 12  Cush.  1 ;  Davis  v.  Prop.  &c.  of  Meeting  House  (religious  cor- 
poration), 8  Met.  321.  Perhaps  it  is  difficult  to  draw  a  distinction  between 
private  and  municipal  corporations  in  respect  to  the  implied  right  to  bor- 
row money.  But  we  see  much  more  reason  for  affirming  the  existence  of 
an  incidental  power  of  this  kind  with  respect  to  trading,  banking,  manu- 
facturing, and  railroad  corporations  than  in  relation  to  municipal  corpora- 
tions. There  is  a  difference  between  contracting  a  debt  in  the  prosecution 
of  a  legitimate  corporate  purpose  and  borrowing  money  for  that  purpose. 
In  the  one  case,  the  application  of  the  credit  is  secured  to  the  advancement 
of  the  authorized  object,  while  money  borrowed  is  liable  to  be  lost,  or  to  be 
diverted  to  illegitimate  purposes.  It  should  be  remembered,  that  the 
express  powers  can  be  executed  without  holding  that  there  is  an  implied 
power  to  borrow  money.  The  revenue  provisions  of  charters  supply  it  with 
the  means  designed  to  furnish  it  with  money.  And  powers  are  not  held  to 
^xist  merely  because  they  are  convenient.  As  applicable  to  municipal  cor- 
porations, there  is  great  and  almost  convincing  force  in  the  argument  of 
Selden,  J.,  in  Curtis  v.  Leavitt,  supra,  pp.  267,  268.  And  see  Ketchum  v. 
City  of  Buffalo,  14  N.  Y.  256,  365,  1856,  where  the  subject  is  considered  by 
the  same  judge,  and  the  power  of  a  municipal  corporation  to  contract  debts 
on  credit,  for  legitimate  purposes,  is  admitted  to  be  a  question  which  has 
"yet  to  be  judicially  settled."  See,  on  the  general  subject,  Canal  Bank  v. 
Supervisors,  5  Dcnio,  517,  1848;  Barker  v.  Loomis,  6  Hill,  463,  1844;  Peo- 
ple v.  Brennan,  39  Barb.  522,  1863.  In  Commonwealth  v.  Pittsburgh,  41 
Pa.  St.  278,  Strong,  J.,  says,  that  the  power  to  execute  and  issue  bonds  is 
inseparable  from  the  existence  of  all  corporations,  public  and  private. 
Douglass  v.  Virginia  City,  5  Nevada,  147,  1869.  In  New  York,  see  Stat. 
1853,  1135,  chap.  603.  In  Mississippi,  Boards  of  Police  of  counties  have  no 
implied  power  to  borrow  money;  and  when  special  power  to  borrow  money 
is  conferred,  it  must  be  fairly  pursued  ;  and  it  was  held  that  where  a  war- 
rant properly  signed  did  not  (as  required  by  the  statute)  state  on  its  face 


209  MUNICIPAL     CORPORATIONS.  [Ch.  VL 

§  83.  Exj^r ess  power  to  a  municipal  corporation  "to 
borrow  money "  includes  the  power  to  issue  its  negotiable 
bonds,  or  other  usual  securities,  to  the  lender.1  But  it  does 
not  include  the  power  to  issue  notes  to  circulate  as  money, 
in- violation  of  the  statute  law  and  public  policy  of  the 
state." 

§  84.  A  contract  whereby  a  city  agrees  with  an  indi- 
vidual that  if  the  latter  will  pay  or  advance  the  amount  of 
interest  due  and  to  become  due  on  certain  bonds  of  the  city 
already  issued,  the  city  will  pay  or  refund  the  amount,  is 
not  a  "borrowing  of  money"  within  the  terms  or  spirit  of 
the  charter  prohibiting  the  municipal  authorities  from  bor- 
rowing money  unless  authorized  by  a  prior  vote  of  the 
citizens  ;  such  a  contract  being  one  simply  for  the  payment 
of  a  debt.3    Under  authority  to  a  city  to  borrow  money,  it 

the  object  for  which  it  was  issued,  nor  upon  what  fund  drawn,  it  could  not 
be  enforced.  Beamair  v.  Board  oi  Police,  42  Miss.  238  :  15  Wall.  566.  There 
may  be  ground  for  a  distinction,  as  to  the  implied  power  to  borrow  money, 
between  counties  and  ordinary  city  corporations. 

Recent  English  Decisions. — Bond  for  borrowed  money,  given  after  the 
Municipal  Corporations  Act,  held  valid :  Pallister  v.  Mayor,  &c,  9  C.  B. 
744;  Payne  v.  Mayor,  &c,  3  Hurl.  &  Nor.  572.  See  Nowell  v.  Mayor,  &c,  9 
Exch.  457;  Kendall  v.  King,  17  C.  B.  483.  Note  for  borrowed  money  held 
invalid  under  the  act:  Attorney  General  v.  Lichfield,  13  Sim.  547;  Reg.  v. 
Lichfield,  4  Queen's  B.  893.  See  Bateman  v.  Mid-Wales  R.  W.  Co.,  L.  R. 
1  C.  P.  510. 

1  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496,  511.  1859';  Railroad  Co. 
v.  Evansville,  15  Ind.  395,  412,  1860;  Middleton  v.  Allegheny  Co.,  37  Pa. 
St.  241 ;  Reinboth  v.  Pittsburg,  41  Pa.  St.  278 ;  Seybert  v.  Pittsburg,  1 
Wall.  272 ;  Rogers  v.  Burlington,  3  Wall.  654,  666,  per  Clifford,  J. ;  De  Voss 
v.  Richmond,  18  Gratt.  (Va.)  338;  S.  C,  7  Am.  Law  Reg.  (N.  S.)  589; 
Galena  v.  Corwith,  48  111.  423,  1868.  Money  borrowed,  and  note  given  by 
officers  of  a  town,  without  authority,  does  not  bind  the  town  in  case  it 
never  receives  the  benefit  of  it.  Beuoit  v.  Conway,  10  Allen,  528;  People 
v.  Supervisors,  34  N.  Y.  516 ;  Police  Jury  v.  Britton,  15  Wall.  566. 

8  Thomas  v.  Richmond,  U.  S.  Supreme  Court,  December,  1871, 12  Wall. 
349. 

Construction  of  the  constitutional  power  of  the  general  government  to 
"borrow  money.'''1  See  Hepburn  v.  Griswold,  8  Wall.  603,  and  Knox  v.  Lee, 
December  term,  1871,  known  as  the  "  legal  tender  cases." 

3  Gelpcke  v.  Dubuque,  1  Wall.  (U.  S.)  221,  1863,  Miller,  J.,  dissenting. 
Where  a  city  can  make  such  a  contract,  with  the  sanction  of  a  prior  vote, 


Ch.  VI.]  MUNICIPAL     CHARTERS.  203 

may,  if  there  be  no.  statutory  restriction,  make  the  principal 
and  interest  payable  at  the  place  where  the  money  is  bor- 
rowed, or  where  it  pleases,  though  beyond  the  limits  of  the 
state.1  Among  the  powers  of  a  strictly  municipal  nature 
conferred  upon  a  city  was  the  power  ' '  to  borrow  money  for 
any  object,  in  its  discretion,"  or  "for  any  public  purpose," 
on  a  two-thirds  vote  of  the  citizens,  and  this  was  held,  in 
connection  with  a  general  statute  of  the  state  recognizing, 
by  implication  (as  construed),  the  validity  of  city  and 
county  bonds  generally,  to  authorize  such  city  to  issue 
bonds  to  aid  in  the  construction  of  a  railway  or  plank  road 
leading  to,  through,  or  from  the  city.3 

Limitation  on  Power  to  Become  Indebted. 

§  85.     Provisions  are  frequently  made  in  constitutions, 
or  in  charters  or  incorporating  acts,  to  prevent  the  creation 

the  sanction  will,  in  an  action  on  such  a  contract,  be  presumed  until  the 
contrary  is  shown  by  the  city.     II.  per  Swayne,  J. 

1  Meyer  v.  Muscatine,  1  Wall.  (U.  S.)  384,  1863.  In  this  case,  the 
court,  per  Swayne,  J.,  say  (1  Wall.  391):  "The  power  of  a  municipal  cor- 
poration to  make  any  contract  does  not  depend  upon  the  place  of  perform- 
ance, but  upon  its  scope  and  object.  A  city  authorized  to  establish  gas- 
works and  water-works,  and  to  gravel  its  streets,  may  buy  water,  coal,  and 
gravel  beyond  its  limits,  and  agree  to  pay  where  they  are  found,  or  else- 
where. The  principal  power,  when  expressed,  draws  to  it,  by  necessary 
implication,  the  means  of  its  execution.  This  is  the  settled  rule  in  the  con- 
struction of  all  grants  of  authority,  whether  to  governments  or  indi- 
viduals." Express  authority  to  a  city  "  to  borrow  money,"  necessarily  im- 
plies the  power  to  determine  the  time  of  payment  and  to  issue  bonds,  or 
other  evidence  of  indebtedness,  to  borrow  within  or  without  the  state,  and 
to  agree  to  pay  where  borrowed.  Raiiroad  Company  v.  Evansville,  15  Ind. 
395,  412,  1860,  distinguished  as  to  place  of  payment  from  Prettyman  v. 
Tazwell  Co.,  19  111.  406,  22  lb.  147,  which  were  regarded  as  turning  upon 
peculiar  statutory  provisions.      See,  further,  chapter  on  Contracts,  pott. 

a  Meyer  v.  Muscatine,  1  Wall.  (U.  S.)  384,  1863,  Miller,  J.,  dissenting,  in 
an  opinion  of  marked  ability;  Mitchell  v.  Burlington,  4  Wall.  270,  1866; 
Rogers  v.  Burlington,  3  Wall.  654,  1865.  General  power  granted  to  a  city 
to  create  a  debt  will  be  construed  to  mean  debts  for  specified,  legitimate, 
and  proper  municipal  purposes,  and  not  for  any  or  all  purposes,  at  the  dis- 
cretion of  the  city  council  or  inhabitants.  Lafayette  v.  Cox,  5  Ind. 
(Porter)  38,  1854.  Limitation  on  taxing  power  does  not  limit  power 
to  contract  debts.  Emerson  v.  Blairsville,  2  Pittsb.  (Pa.)  Rep.  39.  Post, 
eec.  107.     See,  further,  chapter  on  Contracts,  post. 


204  MUNICIPAL     CORPORATIONS.  [Ch.  VI. 

or  increase  of  municipal  indebtedness  beyond  certain  limits, 
or  except  upon  certain  conditions.  The  judicial  construc- 
tion of  some  of  these  provisions  will  be  noticed  in  this 
place.  The  constitution  of  Maryland  contains  a  provision 
that  "No  debt  shall  be  created  by  the  mayor  and  city 
council  of  Baltimore"  (except for  specified  temporary  pur- 
poses), unless  it  shall  be  first  sanctioned  by  the  legislature 
and  approved  by  the  voters  of  the  city.  The  city  being 
the  owner  of  a  large  amount  of  stock  in  the  Baltimore 
and  Ohio  Railroad  Company,  without  previous  legis- 
lative authority  or  the  approval  of  the  voters,  passed  an 
ordinance  to  provide  for  the  raising  of  one  million  of  dol- 
lars, by  hypothecating  its  railroad  stock,  and  for  the  in- 
vestment of  the  same  in  the  bonds  of  another  railroad  com- 
pany in  process  of  construction.  The  validity  of  this  or- 
dinance beiug  drawn  in  question,  the  court  considered  it  to 
be  plain,  that  the  constitutional  provision  quoted  was  in- 
tended to  prohibit  the  city  from  aiding  in  the  construction 
of  works  of  internal  improvement  without  the  previous  as- 
sent of  the  legislature  and  of  a  majority  of  the  voters  of 
the  city  ;  and  that  the  ordinance  (notwithstanding  the  in- 
genious use  of  the  phrase  raising  instead  of  borrowing 
money,  and  the  further  provision  that  the  parties  furnishing 
the  money  should  look  for  its  repayment  exclusively  to  the 
stock  pledged,  and  that  the  city  should  not  be  responsible 
for  any  deficit)  did  create  a  debt  within  the  meaning  of  the 
constitution,  and  was  therefore  void.1 

§  86.  Under  a  charter  prohibiting  the  common  council 
of  a  city  from  "  authorizing  any  expenditure,  for  any  pur- 
pose," in  the  current  political  year,  exceeding  the  amount 
of  the  annual  tax  levy,  the  council  cannot  authorize  any 
expenditure  to  be  made  within  the  year  exceeding  the 
limit ;  but  they  are  not  forbidden  to  authorize,  in  that  year, 
an  expenditure  to  be  made  in  a  subsequent  year,  for  ser- 
vices to  be  performed  in  such  subsequent  year.2 

1  Baltimore  v.  Gill,  31  Md.  375,  1869.  That  a  debt  may  be  created  by- 
borrowing  money,  although  there  be  a  provision  exempting  the  borrower 
from  liability  beyond  the  property  pledged,  see  Newell  v.  People,  3  Seld. 
9,  87. 

3  Weston  v.  Syracuse,  17  N.  Y.  110,  1858.  See,  also,  Cookr.  City  of  Buf 


Ch.  VI.  1  MUNICIPAL     CHARTERS.  205 

§  87.  A  municipal  charter  provided  that  it  should  not 
be  lawful  for  the  city  council  to  make,  or  authorize  to  be 
made,  "  any  contract  for  the  payment  of  money  beyond  the 
current  fiscal  year,''''  declaring  every  such  prohibited  con- 
tract "illegal  and  void."  In  construing  this  language  the 
court  say  :  ''By  this  section  of  the  charter,  the  legislature 
have,  in  the  most  explicit  manner,  prohibited  the  city 
council  from  contracting  any  debt  beyond  the  fiscal  year. 
If  the  city  council  had,  at  the  time  the  contract  was  made, 
in  1845,  passed  an  ordinance  that  the  expense  of  lighting 
the  streets  of  the  city  for  that  year  should  be  paid  in  1848, 
by  a  tax  then  assessed  for  that  purpose,  it  would  have  come 
within  the  letter  of  the  prohibition.  It  is  none  the  less  a 
violation  of  its  spirit,  that  the  council  did  not  pass  the 
ordinance  providing  for  its  payment  until  1848."  ' 

§  88.  If  a  municipal  corporation  has  the  means  in  its 
treasury  to  meet  its  indebtedness,  the  issue  of  warrants  to  an 
amount  larger  than  five  per  cent,  of  its  taxable  property  is 
not  a  violation  of  the  section  of  the  state  constitution  which 
provides  that  "  no  municipal  corporation  shall  be  allowed 
to  become  indebted,  in  any  manner  or  for  any  purpose,  to 
an  amount  exceeding  five  per  cent,  of  the  taxable  property 
within  the  corporation."  In  such  case  it  would  not  be- 
come indebted  within  the  meaning  of  the  constitutional 
clause.8    An  act  of  the  legislature  prohibiting  counties  and 

falo,  1  Clinton's  N.  Y.  Digest, "  Buffalo,"  sect.  2.  Limitation  on  rate  of  tax 
to  be  annually  levied  construed.  State  v.  Mayor,  23  La.  An.  358.  The 
charter  of  a  city  provided  that  "  no  funded  debt  shall  be  contracted."  It 
was  decided,  that  a  city  bond,  issued  on  time,  for  the  purchase  of  market 
grounds,  was  not  a  funded  debt.  Ketch  am  v.  Buffalo,  14  N.  Y.  356. 
Meaning  of  "  funded  debt"  and  "  funding  "  considered  by  Selden,  J.,  lb.  p. 
367,  and  by  Wright,  J.,  p.  378.  City  may  fund  valid  debt  and  issue  its  bonds 
therefor,  without  express  authority.  Galena  v.  Corwith,  48  111.  423,  1868. 
How  fund,  Smith  v.  Morse,  2  Cal.  524.     Ante,  sees.  41,  36;  15  Wall.  566. 

1  Pei'  Caldwell,  J.,  Jonas  v.  Cincinnati,  18  Ohio,  318,  322,  1849.  Con- 
struction of  similar  provision  in  other  charters:  Goodrich  v.  Detroit,  12 
Mich.  279;  Philadelphia  v.  Flanigen,  47  Pa.  St.  21;  Johnsons.  Philadelphia, 
lb.  382;  Wallace  v.  San  Jose,  29  Cal.  180;  Bladen  v.  Philadelphia,  60  Pa. 
St.  464,  construing  an  act  applying  to  the  city  to  the  effect  that  no  debt 
shall  be  binding  unless  authorized  by  law  or  ordinance,  and  a  sufficient  ap- 
propriation therefor  be  made. 

1  Dively  v.  Cedar  Falls,  27  Iowa,  227,  1869.     A  contract  by  the  corpo- 


2()6  MUNICIPAL    CORPORATIONS.  [Ch.  VI. 

cities  from  thereafter  "  contracting  any  debt  or  pecuniary 
liability,  without  fully  providing,  in  the  ordinance  creating 
the  debt,  the  means  of  paying  the  principal  and  interest  of 

ration  to  pay  for  work  when  it  shall  be  performed,  in  the  future,  does  not 
constitute  an  indebtedness,  within  the  meaning  of  this  provision  of  the 
constitution,  until  the  performance  of  the  work.  lb.  But  quaere.  See 
Davenport,  &c.  Gas  Co.  v.  Davenport,  13  Iowa,  229.  A  similar  provision 
exists  in  the  constitution  of  Illinois  and  of  some  other  states.  The  mean- 
ing and  effect  of  the  Iowa  constitution,  quoted  above,  were  much  discussed 
before  the  Supreme  Court  of  Iowa,  in  a  very  recent  case,  in  which  the 
question  was,  Is  a  city  corporation  liable  to  a  bona  fide  holder,  upon  its 
negotiable  bonds  issued  for  value,  when  at  the  time  of  such  issue  the  city 
was  indebted  to  the  full  extent  of  the  constitutional  limit  ?  The  cause  was 
settjed  before  being  decided,  and  no  opinions  were  filed ;  but  the  judges 
differed  in  their  judgment.  In  the  "Western  Jurist  (vol.  VI.  p.  1,  January, 
1872),  will  be  found  two  able  and  interesting  articles  upon  the  question 
above  stated,  containing  the  arguments  upon  both  sides  of  it — the  one 
being  prepared,  as  it  is  understood,  by  Mr.  Justice  Beck,  and  the  other  by  Mr. 
Justice  Cole,  of  the  Supreme  Court  of  Iowa.  The  proposition  upon  which 
they  differ  is  whether  the.poioer  given  to  a  city  to  issue  its  bonds,  absolutely 
ceases  as  to  innocent  holders,  the  moment  the  consitutional  limit  is  reached, 
the  same  as  if  it  had  never  been  conferred.  In  view  of  the  language  shall 
not  "  be  allowed ;"  the  course  of  decision  in  the  United  States  Supreme  Court, 
elsewhere  noticed,  protecting  the  holders  of  this  class  of  securities;  and  the 
impractibility,  and  even  impossibility,  of  purchasers  ever  to  ascertain,  at  a 
given  moment,  the  amount  of  indebtedness  of  a  corporation,  the  author, 
while  appreciating  the  difficulties  of  the  question,  is  inclined  to  think  that 
if  the  power  to  issue  negotiable  securities  be  given,  and  the  inhabitants 
stand  by  and  allow  such  bonds  to  be  issued,  for  value  received  by  the  cor- 
poration, and  sold,  that  it  should  be  held  liable  thereon.  If  the  bonds  are 
void,  and  the  city  has  received  value,  it  would  be  liable  to  pay  back  what 
it  had  received  from  innocent  persons,  or  else  the  provision  of  the  constitu- 
tion would  operate  to  ensnare  and  defraud  those  who  deal  with  it;  and, 
if  thus  liable,  the  constitutional  limit  may  be  exceeded  in  this  way,  as  well 
as  by  sustaining  the  right  to  recover  on  the  bonds. 

The  provision  of  the  Iowa  constitution,  above  quoted,  was  further  ex- 
pounded in  the  late  case  of  Grant  v.  Davenport,  April  term,  1873,  not  yet 
reported,  which  involved  the  validity  of  a  contract  by  the  city  to  supply 
itself  with  water;  and  it  was  held  that  where  a  contract  made  by  a  muni- 
cipal corporation  pertains  to  its  ordinary  expenses,  and  is,  together  with 
other  like  expenses,  within  the  limit  of  its  current  revenues  and  such  special 
taxes  as  it  may  legally,  and  in  good  faith  intends  to  levy  therefor,  such 
contract  does  not  constitute  "the  incurring  of  indebtedness  "  within  the 
meaning  of  tie  constitutional  provision  limiting  the  power  of  municipal 
corporations  to  contract  debts. 

The  charter  of  the  City  of  Portland,  Oregon,  prohibited  the  city  from 
contracting  an  indebtedness  exceeding  $50,000;  and  it  was  held  by  Judge 


Ch.  VI.]  MUNICIPAL     CHARTERS,  20? 

the  debt  so  contracted,"  does  not  extend  to  ordinary  street 
work,  which  forms  part  of  the  current  expenses  of  the 
corporation,,  and  which  maj^  be  paid  out  of  its  current 
revenues.1 

§  89.  A  restrictive  provision  in  a  city  charter,  that  the 
"  council  shall  not  create,  or  permit  to  accrue,  any  debts  or 
liabilities  which  shall  exceed"  a  specified  sum,  unless  a 
certain  course  be  pursued  by  the  council  and  approved  by 
a  vote  of  the  people,  has  been  considered  to  have  no  relation 
to  liabilities  arising  ex  delicto,  or  to  those  which  the  law 
may  cast  upon  the  corporation,  and  to  apply,  at  most,  only 
to  contracts  or  liabilities  voluntarily  created.  The  court, 
indeed,  regarded  the  provision  as  directory  simply,  and  not 
as  limitation  on  the  power  of  the  council  to  create  debts.* 

But  in  another  case  a  provision  in  a  city  charter  that  the 
council  shall  not  have  power  to  pledge  the  credit  of  the  city 
for  more  than  a  specified  sum  without  submitting  the  ques- 
tion to  the  voters  of  the  city  was  regarded  as  a  definite  re- 
striction on  the  power  ;  and  hence  a  statute  authorizing  the 
city  to  issue  bonds  to  defray  the  expenses  of  building  a 
bridge  is  subordinate  to,  and  does  not  override,  the  restric- 
tion in  the  charter.8 

§  90.  Constitutional  limitations  on  state  indebtedness 
apply  to  the  state  alone,  and  not  to  her  political  and  muni- 
cipal subdivisions.*    A  legislative  provision  prohibiting  the 

Deady  that  an  ordinance  assuming  a  liability  of  $350,000,  to  be  paid  in 
semi-annual  instalments  extending  through  twenty  years  was  in  violation  of 
the  charter,  and  this  although  the  ordinance  made  provisions  for  the  pay- 
ment of  such  instalments  as  they  fell  due  by  the  levy  of  taxes  for  that  pur- 
pose.    Coulson  v.  Portland,  Deady,  481,  18G8. 

As  to  constitutional  provision  requiring  the  legislature  to  restrict  the 
power  of  municipalities  to  levy  taxes,  borrow  money,  &c.  see,  ante,  chap. 
HI.  sec.  27. 

1  Reynolds  v.  Shreveport,  13  La.  An.  326,  1858. 

*  McCracken  v.  San  Francisco,  16  Cal.  591,  1860. 

8  Cumberland  v.  Magruder,  34  Md.  381,  1871.  But  see  Butz  v.  Musca- 
tive,  8  Wall.  575,  1869.     Post,  sec.  107. 

4  Pattison®.  Supervisors,  13  Cal.  175,  1869;  Cass  v.  Dillon,  2  Ohio  St. 
607,  1853;  Slack  v.  Railroad  Company,  13  B.  Mon.  16;  Clark  v.  Janesville, 
10  Wis.  136;  Prettyman  v.  Supervisors,  19  111.  406.     See  People  v.  Super- 


208  MUNICIPAL     CORPORATIONS.  [Cn.  VL 

city  authorities  from  incurring  an  indebtedness  beyond'  a 
designated  amount,  does  not  apply  to  the  legislature  of  the 
state  ;  and  the  latter  may,  of  course,  by  a  subsequent  act, 
authorize  an  increase  of  the  amount.1 

Rewards  for  Offenders. 

§  91.  The  governing  body  of  a  municipal  corporation 
(which  has  power  to  protect  the  property  and  promote  the 
welfare  of  its  inhabitants),  may  offer  a  reward  for  the  de- 
tection of  offenders  against  the  general  safety  of  its  people, 
as,  for  example,  those  guilty  of  the  crime  of  arson  within 
the  corporate  limits.2  If  made  by  the  mayor,  it  may  be 
ratified  by  the  city  council  subsequently,  and  is  binding 
upon  the  city,  though  not  so  ratified  until  after  the  per- 
formance of  the  service  for  which  the  reward  is  claimed.* 
A  promise  to  reward  an  officer  for  doing  that  which,  with- 
out such  reward,  it  was  his  duty  to  do,  is  void.  Such  a 
promise  is,  on  general  principles,  without  consideration, 

visors,  16  Mich.  254,  and  Mr.  Justice  Lowe's  individual  opinion — not  the 
court's — in  State  v.  County  of  Wapello,  13  Iowa,  388,  418-422;  Dubuque 
County  v.  Railroad  Company,  4  G.  Greene,  1 ;  Dean  v.  Madison,  7  Wis. 
688. 

1  Amey  v.  Allegheny  City,  24  How.  (TJ.  S.)  364,  1860.  Construction  of 
particular  limitation :  lb.  See,  on  the  general  subject,  Wallace  v.  Mayor, 
29  Cal.  180;  Wyncoop  v.  Society,  10  Iowa,  185;  Rice  ».  Keokuk,  15  Iowa, 
579;  Gibbon  v.  Railroad  Company,  36  Ala.  410;  Foote  v.  Salem,  14  Allen, 
487 ;  Dunnova  v.  Green,  57  111,  30. 

a  York  v.  Forscht,  23  Pa.  St.  391,  1854 ;  Crawshaw  v.  Roxbury,  7  Gray, 
374,  1856.  Such  an  offer  is  not  void  for  ambiguity,  and  entitles  a  person 
to  the  reward  who  gives  information  to  the  police  officers  of  the  city  upon 
which  the  incendiary  is  arrested,  he  being  afterwards  convicted.  The 
power  of  towns  in  Maine  to  offer  rewards  denied ;  Gale  «.  South  Berwick, 
51  Maine,  174.     See  Lee  v.  Fleminsburg,  7  Dana,  59. 

3  Crawshaw  v.  Roxbury,  supra.  Under  a  statute  authorizing  the  mayor 
and  city  council  of  any  city,  or  the  selectmen  of  any  town,  to  offer  and  pay 
from  the  treasury  of  such  city  or  town  a  suitable  reward,  not  exceeding 
$300,  for  apprehending  and  securing  a  person  charged  with  a  capital  or 
other  high  crime,  any  city  or  town  may  be  bound  by  an  offer  of  a  reward  in 
such  cases;  and  city  person  who  performs  the  service,  relying  upon  such 
offer,  may,  in  action  of  assumpsit,  recover  the  amount  offered  of  such  city  or 
town.  Janvrin  v.  Exeter,  48  N.  H.  Requisites  of  declaration  where  reward 
is  offered  by  a  town,  see  Codding  v.  Mansfield,  7  Gray,  272. 


Ch.  VI.]  MUNICIPAL     CHARTERS.  209 

if,  indeed,  it  be  not  illegal.1  Therefore,  a  watchman  of  a 
city,  who,  while  in  the  discharge  of  his  duty  as  such,  dis- 
covers a  person  in  the  act  of  committing  a  crime,  cannot  re- 
cover from  the  city  a  reward  offered  by  it.3 

Public  Buildings. 

§  92.  Power  to  the  officers  or  to  one  of  the  departments 
of  a  municipal  corporation,  to  provide  for  repairs  to  pub- 
lic buildings,  does  not  give  authority  to  erect  a  new  build- 
ing, and  certainly  not  a  large  and  expensive  edifice.3  But 
power  to  a  municipal  corporation  to  rebuild  or  repair  car- 
ries with  it  the  right  to  determine  plan  and  mode.4 

Police  Powers  and  Regulations. 

§  93.  Many  of  the  powers  most  generally  exercised  by 
municipalities  are  derived  from  what  is  known  as  the  police 
power  of  the  state,  and  are  delegated  to  them  to  be  exer- 
cised for  the  public  good.  Of  this  nature  is  the  authority 
to  suppress  nuisances,  preserve  health,  prevent  fires,  to 
regulate  the  use  and  storing  of  dangerous  articles,  to  estab- 
lish and  control  markets,  and  the  like.     These  and  other 

1  Stotesbury  v.  Smith,  2  Burr.  924 ;  3  Kent  Com.  185 ;  Harris  v.  Wat- 
son, Peake,  72;  Stilk  v.  Myrick,  2  Campb.  317;  Bridge  v.  Cage,  Cro.  Jac. 
103.     See  chapter  on  Corporate  Officers,  post,  sees.  172,  173. 

Pool  a.  Boston,  5  Cush.  219,  1849;  Gilmore  v.  Lewis,  12  Ohio,  281; 
Means  v.  Hendershott,  24  Iowa,  78;  Chap.  IX.  post. 

3  Peterson  v.  Mayor,  &c.  17  N.  Y.  449,  455,  per  Denio,  J.  Contract  be- 
tween city  and  county  in  respect  to  public  buildings:  Bergen  v.  Clarkson, 
1  Halst.  (N.  J.)  352,  1796;  De  Witt  v.  San  Francisco,  2  Cal.  289,  1852. 

4  Ely  v.  Rochester,  26  Barb.  133,  1837.  As  to  power  to  build  town  house. 
French  v.  Quincy,  3  Allen,  9.  Incidental  power  to  provide  suitable  accom- 
modations for  the  transaction  of  the  business  of  the  corporation.  People  v. 
Harris,  4  Cal.  9;  see  Vanover  v.  Davis,  27  Geo.  354;  chapter  on  Corporate 
Property,  post.  Council  have  power  to  fit  up  and  furnish  the  room  in 
which  they  meet,  and  the  court  refused  to  enjoin  them  from  furnishing  the 
council  chamber  with  portraits  of  the  governors  of  the  state.  Reynolds  v. 
Mayor  of  Albany,  8  Barb.  597 ;  People  v.  Harris,  4  Cal.  9 ;  but  see  Hodges 
v.  Buffalo,  2  Denio,  110;  Stetson  v.  Kempton,  13  Mass.  272,  1816,  per 
Parker,  C.  J.  Proper  uses  of  public  buildings:  Scofield  v.  School  District, 
27  Conn.  499;  French  v.  Quincy,  3  Allen,  9.  Market  Houses,  post,  sees. 
313-318,  432,  510. 

14 


210  MUNICIPAL     CORPORATIONS.  [Ch.  VI 

similar  topics  will  be  considered  in  appropriate  places. 
But  it  may  here  be  observed,  that  every  citizen  holds  his 
property  subject  to  the  proper  exercise  of  this  power,  either 
by  the  state  legislature  directly,  or  by  public  corporations 
to  which,  the  legislature  may  delegate  it.  Laws  and  ordi- 
nances relating  to  the  comfort,  health,  convenience,  good 
order,  and  general  welfare  of  the  inhabitants,  are  compre- 
hensively styled,  ''Police  Laws  or  Regulations."  And  it 
is  well  settled  that  laws  and  regulations  of  this  character, 
though  they  may  disturb  the  enjoyment  of  individual  rights, 
are  not  unconstitutional,  though  no  provision  is  made  for 
compensation  for  such,  disturbances.  They  do  not  appro 
priate  private  property  for  public  use,  but  simply  regulate 
its  use  and  enjoyment  by  the  owner.  If  he  suffers  injury, 
it  is  either  damnum  absque  injuria,  or,  in  the  the  theory 
of  the  law,  he  is  compensated  for  it  by  sharing  in  the  gen- 
eral benefits  which  the  regulations  are  intended  and  calcu- 
lated to  secure.  The  citizen  owns  his  property  absolutely, 
it  is  true  ;  it  cannot  be  taken  from  him  for  any  private  use 
whatever,  without  his  consent,  nor  for  any  public  use  with- 
out compensation  ;  still  he  owns  it  subject  to  this  restric- 
tion, namely  :  that  it  must  be  so  used  as  not  to  injure  others, 
and  that  the  sovereign  authority  may,  by  police  regulations, 
so  direct  the  use  of  it  that  it  shall  not  prove  pernicious  to 
his  neighbors  or  the  citizens  generally.  These  regulations 
rest  upon  the  maxim,  salus  populi  suprema  est  lex.  This 
power,  to  restrain  a  private  injurious  use  of  property,  is 
very  different  from  the  right  of  eminent  domain.  It  is  not 
a  taking  of  private  property  for  public  use,  but  a  salutary 
restraint  on  a  noxious  use  by  the  owner,  contrary  to  the 
maxim,  sic  utere  tuo  ut  alienum  non  l&das.1 

1  Baker  v.  Boston,  12  Pick.  184,  1831  (as  to  nuisances);  Wadleigh  v. 
Gillnian,  12  Maine,  403  (as  to  wooden  buildings);  Vanderbilt  v.  Adams,  7 
Cowen,  349  (as  to  harbor  regulations,  where  the  general  principle  upon 
•which  police  laws  rest,  is  very  satisfactorily  discussed  by  Woodworth,  J.) ; 
Commonwealth  v.  Alger,  7  Cush.  53,  84  (valuable  opinion  by  Shaw,  C.  J.) ; 
Coates  v.  Mayor,  &c.  of  New  York,  7  Cowen,  585  (as  to  ordinance  prohibit- 
ing the  interment  of  the  dead  within  the  city);  Goszler  v.  Georgetown,  6 
Wheat.  181  (as  to  power  to  grade).  Speaking  of  turnpike  acts,  paving  acts, 
&c,  Lord  Kenyon,  in  the  case  of  the  Governor,  &c.  v.  Meredith,  4  Term 
Rep.  790,706,  says:  "  Some  individuals  suffer  an  inconvenience  under  all 
these  acts  of  parliament;  but  the  interests  of  individuals  must  give  way  to 


Ch.  VI.]  MUNICIPAL     CHARTERS.  211 

Prevention  of  Fires. 

§  94.  The  prevention  of  damage  by  fire  is  usually  an 
object  within  the  scope  of  municipal  authority,  either  by 
express  grant  or  by  the  power,  in  a  chartered  town  or  city, 
to  make  police  regulations  or  needful  by-laws.  And  where 
such  is  the  case,  the  town  or  municipal  body  is  authorized 
to  appropriate  money  for  the  purchase  of  engines,  or  for 
the  repair  thereof,  if  used  for  the  purpose  of  extinguishing 
fires  therein  ;  and  this,  whether  they  belong  to  the  colora- 
tion or  were  purchased  by  private  subscription.1  And 
money  may  also  be  appropriated  for  the  benefit  of  engine 
and  hook  and  ladder  companies  therein.3 

Quarantine  and  Health. 

§  95.  The  preservation  of  the  public  health  and  safety  is 
often  made  a  matter  of  municipal  duty,  and  it  is  competent 

the  accommodation  of  the  public."  And  per  Butter,  J.,  in  same  case: 
"There  are  many  cases  in  which  individuals  sustain  an  injury,  for  which 
the  law  gives  no  action;  for  instance,  pulling  down  houses,  or  raising  bul- 
warks, for  the  preservation  and  defence  of  the  kingdom  against  the  king's 
enemies."  But  "  the  law  will  not  allow  the  right  of  property  to  be  in\aded, 
under  the  guise  of  a  police  regulation  for  the  preservation  of  health,  when 
it  is  manifest  that  such  is  not  the  object  and  purpose  of  the  regulation." 
Per  Wilde,  J.,  in  Austin  v.  Murray,  16  Pick.  126;  Greene  v.  Savannah,  6 
Geo.  1,  1849;  Peoples.  Hawley,  3  Mich.  330;  Ames  v.  County,  11  Mich. 
139.  The  extent  of  the  police  power  will  be  further  discussed  in  the  chap- 
ter on  Ordinances,  post.  See,  also,  Cooley  Const.  Lim.  572-594.  How  far 
and  when,  cities,  in  executing  police  duties,  are  agents  of  the  state,  and  not 
of  the  municipality.  See  Buttrick  v.  Lowell,  1  Allen,  172;  Mitchell  v. 
Rockland,  51  Maine,  118,  122;  State  ex  rel.  &c.  v.  St.  Louis  Court,  34  Mo. 
356;  Whiter.  Kent,  11  Ohio  St.  550;  Thomas  v.  Ashland,  12  lb.  127;  City 
Council  v.  Payne,  2  Nott  &  McCord  (South  Car.),  475;  People  v.  Hurlburt, 
24  Mich.  44,  1871.     Ante,  sec.  34.     Post,   sees.  191,  326,  329,  609. 

1  Allen  -v.  Taunton,  19  Pick.  485,  1837;  Huneman  v.  Fire  District,  37 
Vt.  40 ;  Robinson  v.  St.  Louis,  28  Mo.  488  (repair  of  engine  house) ;  Wad- 
leigh  v.  Gillman,  12  Maine,  403;  Vanderbilt  v.  Adams,  7  Cowen,  349,  352; 
post,  sees.  338,  442  n.,  545,  756-759,  774. 

a  Van  Sicklen  :  Burlington,  27  Vt.  (1  "Wins.)  70,  1854.  Approving,  Allen 
c.  Taunton,  supra.  See  post,  chapter  on  Ordinances.  Power  of  council 
over  tire  companies,  and  to  appoint  officers  therefor.  See  Miller  v.  Savan- 
nah Fire  Co.,  26  Geo.  678. 


212  MUNICIPAL     CORPORATIONS.  [Ch.  VI. 

for  the  legislature  to  delegate  to  municipalities  the  power  to 
regulate,  restrain,  and  even  suppress,  particular  branches  of 
business,  if  deemed  necessary,  for  the  public  good.1  The 
subject  will  be  considered  more  in  detail  in  the  chapter  on 
Ordinances.  The  general  nature  and  scope  of  the  authority 
as  it  is  not  unfrequently  bestowed,  are  well  illustrated  by  a 
case  in  Maryland.  By  its  charter  the  city  of  Baltimore  was 
vested  with  "full  power  and  authority  to  enact  all  ordi- 
nances necessary  to  preserve  the  health  of  the  city,  prevent 
and  remove  nuisances,  and  to  prevent  the  introduction  of 
contagious  diseases  within  the  city  and  within  three  miles 
of  the  same."  Commenting  on  this  provision  of  the  char- 
ter, the  Court  of  Appeals  say :  "  The  transfer  of  this  salu- 
tary and  essential  power  is  given  in  terms  as  explicit  and 
comprehensive  as  could  have  been  used  for  such  a  purpose. 
To  accomplish,  within  the  specified  territorial  limits,  the 
objects  enumerated,  the  corporate  authorities  were  clothed 
with  all  the  legislative  powers  which  the  general  assembly 
could  have  exercised.  Of  the  degree  of  necessity  for  such 
municipal  legislation,  the  Mayor  and  City  Council  of  Bal- 
timore were  the  exclusive  judges.  To  their  sound  discretion 
is  committed  the  selection  of  the  means  and  manner  (con- 
tributory to  the  end)  of  exercising  the  powers  which  they 
might  deem  requisite  to  the  accomplishment  of  the  objects 
of  which  they  were  made  the  guardians.  ''  To  prevent  the 
introduction  of  contagious  diseases  within  the  city,  and" 
within  three  miles  of  the  same,'  they  might  impose  heavy 
penalties  on  the  captain,  owner,  or  consignee  of  any  ship  or 
other  vessel  entering  the  port  of  Baltimore,  on  board  of 
which  small  pox  or  other  contagious  diseases  might  prevail, 
or  they  might  seek  the  accomplishment  of  their  object  by 
causing  the  vessel  and  all  persons  to  be  taken  possession  of 
and  controlled  until  their  purification  and  disinfection  were 
effected,  and  impose  on -the  captain,  owner,  or  consignee, 
the  payment  or  reimbursement  of  all  the  expenses  incurred 
by  such  proceedings  ;  or  they  might  adopt,  at  the  same 
time,  both  suggested  remedies,  if  for  the  successful  and 

1  Shrader,  Ex  parte,  33  Cal.  279,  1867;  Asbrook  «.  Commonwealth,  1 
Bush  (Ky.)  139,  1866;  Tucker  v.  Virginia  City,  4  Nev.  20.  Post,  sees.  303, 
805,  306,  775. 


Ch  VI.  ]  MUNICIPAL    CHARTERS.  213 

faithful  execution  of  their  powers  they  deemed  it  necessary 
to  do  so."1 

§  96.  And  it  was  held,  that,  under  this  authority,  it  was 
competent  for  the  city  to  pass  an  ordinance  providing 
for  the  appointment  of  a  "health  officer,"  prescribing  his 
duties  and  powers  ;  and  that  the  city  might  recover  from  the 
consignee  of  a  vessel,  and  was  not  confined  to  the  charterer, 
the  expenses  incurred  by  it  in  disinfecting  and  purifying  the 
vessel,  persons,  and  baggage  on  board  of  her  at  the  time  of 
her  arrival,  from  the  infection  of  the  small  pox.  Kespecting 
the  extent  of  liability,  the  court  decided,  that  the  defendant 
was  not  entitled  to  an  instruction  that  the  recovery  must  be 
limited  to  the  amount  of  expenses  absolutely  necessary  to 
preserve  the  health  of  the  city,  or  to  prevent  the  introduc- 
tion of  the  small  pox.  On  this  point  the  court  expressed  its 
judgment  to  be  that,  "if  the  health  officer"  (on  whom  the 
duty  of  disinfecting  the  vessel  was  imposed  by  ordinance), 
in  causing  expenses,  "acted  bona  fide,  within  the  limits  of 
a  sound  discretion,  and  with  reasonable  skill  and  judgment, 
in  the  discharge  of  his  official  duties,  the  reasonable  ex- 
penses thus  incurred  must  be  paid."  Concerning  the  power 
of  the  corporation  over  the  persons  on  board  of  an  infected 
vessel,  the  court  was  of  opinion,  that  it  was  competent  for 
the  health  officer  to  be  authorized,  by  ordinance,  to  send 
persons  laboring  under  infectious  disease  to  the  hospital, 
and  also  those  on  board  of  the  vessel  liable  to  be  affected  by 
the  disease,  if,  in  his  opinion,  such  a  course  be  necessary  to 
prevent  the  spread  of  disease ;  and  the  owner,  master,  or 
consignee  may  be  liable  for  expenses  thus  incurred,  if  the 
health  officer  acts  with  reasonable  skill  and  judgment,  and 
exercises  a  sound  and  honest  discretion.8 

§  97.  A  city  having  power  to  pass  ordinances  respect- 
ing the  police  of  the  place,  and  to  preserve  health,  is  author- 
ized, as  a  sanitary  and  police  regulation,  to  contract  to  pro- 
cure a  supply  of  water,  by  boring  an  artesian  well,  or 
otherwise,  on  the  public  square,  and  is  the  judge  of  the 
mode  best  adapted  to  accomplish  the  object." ' 

'  Harrison  v.  Baltimore,  1  Gill  (Md.)  264,  1843.     Ante,  sec.  58. 

3  Harrison  v.  Baltimore,  1  Gill  (Md.)  264,  1843. 

*  Livingston  v.  Pippin,  31  Ala.  542,  1858.     As  to  water-works :  Rome  e. 


214  MUNICIPAL     CORPORATIONS.  [Ch.   VI. 


Indemnifying  Officers. 

§  98.  Where  a  municipal  corporation  has  no  interest  in 
the  event  of  a  suit,  or  in  the  question  involved  in  the  case, 
and  where  the  judgment  therein  can  in  no  way  affect  the 
corporate  rights  or  corporate  property,  it  cannot  assume 
the  defence  of  the  suit,  or  appropriate  its  money  to  pay  the 
judgment  therein  ;  and  warrants  or  orders  based  upon  such 
a  consideration  are  void.1  But  a  municipal  corporation  has 
power  to  indemnify  its  officers  against  liability  which  they 
may  incur  in  the  bona  fide  discharge  of  their  duties,  although 
the  result  may  show  that  the  officers  have  exceeded  :heir 
legal  authority.2  Thus,  it  may  vote  to  defend  suits  brought 
against  its  officers  for  acts  done  in  good  faith  in  the  exercise 
of  their  office.3  So,  if  a  public  corporation  is  charged  with 
the  duty  of  repairing  highways,  and  is  made  liable  for  de- 
Cabot,  28  Ga.  50;  Hale  v.  Houghton,  8  Mich.  458.  A  municipal  corporation 
owning  lands  on  a  watercourse,  distant  from  the  city,  to  supply  its  inhab- 
itants with  water,  has  no  right  (uuless  acquired  by  purchase  or  by  the  ex- 
ercise of  the  right  of  eminent  domain)  to  divert  water  to  the  injury  of  other 
riparian  proprietors.  Steiu  v.  Burden,  24  Ala.  130,  1854;  Fleming's  Appeal, 
65  Pa.  St.  444;  ante,  sec.  13. 

*  Halstead  v.  Mayor,  &c.  of  N.  Y.,  3  Comst.  430,  1850,  affirming  S.  C,  5 
Barb.  218,  and  deciding  that  corporate  funds  cannot  be  appropriated  to  pay 
penalties  personally  incurred  by  officers  for  refusing  to  discharge  their  of- 
ficial duties;  refer  to,  in  explanation,  Morris  v.  The  People,  3  Denio,  381. 
And  see,  also,  People  v.  Lawrence,  6  Hill,  244,  holding  that  the  supervisors 
of  a  county  had  no  right  to  appropriate  money  to  defray  the  costs  of  a  jus 
tice  of  the  peace  who  had  been  prosecuted  lor  official  misconduct  and 
acquitted;  recognized  in  Bank  v.  Supervisors,  5  Denio,  517,  521.  Same 
principle,  Merrill  ».  Plainfield,  45  X.  H.  126.  In  Canada  it  is  held  that  a 
municipal  corporation  cannot  pass  a  by-law  to  pay  the  costs  of  a  contested 
election  to  a  municipal  office,  nor  indemnify  one  of  the  parties  to  such  a 
contest.  In  re  Bell,  &c,  2  Upper  Can.  Com.  Pleas  Rep.  507;  S.  C,  3  lb. 
400. 

j  Pike  v.  Middleton  (indemnifying  tax  collector),  12  K  H.  278,  1841 ; 
Fuller  v.  Groton,  14  Gray,  340;  Sherman  v.  Carr  (indemnifying  executive 
officer),  8  R.  I.  431,  1867;  Briggs  v.  Whipple,  6  Vt.  95,  1834;  Bancroft  v. 
Lynnfield,  18  Pick.  566,  1836;  Xelson  v.  Milford,  7  Pick.  18,  26,  1828; 
Babbitt  v.  Savoy,  3  Cush.  530,  1849;  Hasdell  v.  Hancock,  3  Gray,  526, 
1853.     In  Page  v.  Frankford,  9  Greenl.  155,  this  was  left  an  open  question. 

•  lb      Baker  v.  Windham,  13  Maine  (1  Shep.)  74,  1836. 


Ch.  VI. J  MUNICIPAL     CHARTERS.  215 

fects  therein,  it  has  the  incidental  power  to  indemnify  an 
officer  who  digs  a  ditch  for  the  purpose  of  raising  a  legal 
question  as  to  the  bounds  of  the  highway.1 

§  99.  So,  a  vote  by  a  town  to  refund  money  paid  by 
assessors  on  an  illegal  assessment  of  a  town  tax  made  by 
them,  is  an  express  promise,  founded  upon  a  meritorious 
and  legal  consideration,  and  is  irrevocably  binding  upon 
the  town.  And  this,  although,  without  such  vote,  the  town 
could  not  have  been  compelled  to  refund  or  indemnify  the 
assessors.  But  such  a  vote,  by  a  town,  would  be  without 
consideration  in  respect  to  state  and  county  taxes.3  So,  if 
the  town  is  not  concerned,  having  nothing  to  lose  or  gain  in 
the  result  of  the  litigation,  a  vote  to  indemnify  an  officer 
would  be  in  excess  of  its  power,  and  void  ;3  but  it  would  be 
otherwise  if  the  suit  against  the  officer  was  in  respect  to 
matters  in  which  the  corporation  was  interested.* 

Furnishing  Entertainments. 

§  100.  Without  express  power,  a  public  corporation 
cannot  make  a  contract  to  provide  for  celebrating  the  Fourth 
of  July,  or  to  provide  an  entertainment  for  its  citizens  or 
guests.  Such  contracts  are  void,  and  although  the  plaintiff 
complies  therewith  on  his  part,  he  cannot  recover  of  the 
corporation.5 

1  Bancroft  v.  Lynnfield,  supra. 

*  Nelson  v.  Milford,  7  Pick.  18,  1828.  A  separate  action,  on  such  a 
vote,  lies  against  the  town  in  favor  of  each  assessor  for  his  share,  -which 
does  not  include,  however,  his  own  tax,  paid  by  him  voluntarily.     lb. 

8  Vincent  v.  Nantucket,  12  Cush.  105,  1853.  "A  promise  to  indemnify 
a  tax  collector  if  he  would  collect,  by  pretense  of  his  official  authority,  a 
tax  which  he  knew  was  illegal,  would  be  an  agreement  to  violate  the  law, 
and  could  not  be  enforced."  Pike  v.  Middleton,  12  N.  H.  281,  per  Gilchrist, 
J.  Selectmen,  under  their  authority  "to  order  and  manage  all  of  the  pru- 
dential affairs  of  the  town,"  may  bind  the  town  thus  to  indemnify  its 
officers.     12  N.  H.  281,  supra;  ante,  sec.  13,  and  notes. 

4  Briggs  v.  Whipple,  6  Vt.  95,  1834. 

6  Hodges  v.  Buffalo,  2  Denio  (N.  Y.)  110, 1846.  Same  principle:  Cornell 
0.  Guilford,  1  Denio,  510;  Hood  v.  Lynn,  1  Allen  (Mass.)  103,  1861; 
Gerry  v.  Stoneman,  lb.  319.  Nor  to  celebrate  surrender  of  Cornwallis: 
Tash  v.  Adams,  10  Cush.  252,  1852.  Nor  can  towns  in  Massachusetts  vote 
money  for  the  purchase  of  uniforms  for  an  artillery  company:  Clafiin  v. 


216  MUNICIPAL     CORPORATIONS.  [Ch.  VI 


Impounding  Animals. 

§  101.  Power  to  impound  and  forfeit  domestic  animals 
must  be  expressly  granted  to  the  corporation,  and  laws  or 
ordinances  authorizing  the  officers  of  the  corporation  to 
impound,  and,  upon  taking  specified  proceedings,  to  sell 
the  property,  are  penal  in  their  nature,  and  where  doubtful 
in  their  meaning  will  not  be  construed  to  produce  a  for- 
feiture of  the  property,  but  rather  the  reverse.  And  the 
pound-keeper  cannot  justify  in  an  action  brought  against 
him  by  the  property  owner  unless  he  has  strictly  complied 
with  ail  the  requisites  of  the  law  under  which  he  acts. 
Thus,  if  he  sells  without  giving  the  requisite  notice,  or  for 
the  full  length  of  time  required,  he  is  liable,  although  the 
owner  sustains  no  actual  injury  from  the  omission,  or  the 
owner  may  treat  the  sale  as  void  and  recover  his  property.1 

Hopkinton,  4  Gray,  502,  1855.  "Corporations,"  says  Jewett,  J.,  in  Hodges 
v.  Buffalo,  2  Denio,  110,  have  no  other  powers  than  such  as  are  expressly- 
granted,  or  such  as  are  necessary  to  carry  into  effect  the  powers  expressly 
granted."  In  New  York  there  is  a  statutory  declaration  of  this  common 
law  principle.  1  Rev.  Sts.  599,  sees.  1-3.  "Until  the  case  of  Hodges  v. 
Buffalo,  2  Denio,  110,  nothing,"  says  Pratt,  J.,  3  Comst.  433,  "was  more 
frequent  than  for  city  authorities  to  vote  largesses  and  give  splendid  ban- 
quets for  objects  and  purposes  having  no  possible  connection  with  the 
growth  or  weal  of  the  body  politic,  thus  subjecting  their  constituents  to 
unnecessary  and  oppressive  taxation."  Ante,  sec.  55;  post,  chap.  XXII. 
sec.  732. 

•  White  v.  Tallman,  2  Dutch.  (N.  J.)  67,  1856;  Willis  v.  Legris,  45  111. 
289;  lb.  218;  Rounds  v.  Stetson,  45  Maine,  596,  1858;  Gilmore  v.  Holt,  4 
Pick.  258,  1826 ;  Rounds  v.  Mansfield,  38  Maine,  586,  1854 ;  Smith  v.  Gates, 
21  Pick.  55,  where  the  rule  in  the  text  was  applied,  although  the  sale  was 
made  only  twenty  minutes  before  the  expiration  of  the  time  required  by 
law.  So  actual  knowledge,  by  the  owner  of  the  beasts,  of  the  impounding 
thereof,  is  not  equivalent  to  the  tcritten  notice  required  by  the  statute. 
Coffin  v.  Field,  7  Cush.  355.  Abridgment  of  the  required  notice  for  the 
shortest  period  avoids  the  sale ;  and  so  does  a  sale,  at  one  bidding,  of  two 
animals  having  different  owners.  Clark  v.  Lewis,  35  111.  417,  1864.  Pur- 
chaser must  show  a  regular  and  authorized  sale  when  his  title  is  questioned 
by  the  former  owner.  lb.  Breach  of  a  pound,  and  liberating  an  animal 
therein  confined,  is  no  violation  of  an  ordinance  prohibiting  "any  person 
from  opposing  or  interrupting  any  city  officer  in  the  execution  of  the  ordi- 
nances of  the  city."  Mayor,  &c.  v.  Omburg,  22  Geo.  67,  1857.  Marshal 
must  strictly  comply  with   the  ordinance,  or  he  becomes  a  trespasser  from 


Ch.  VI.  J  MUNICIPAL     CHARTERS.  211 

A  statute  directing  the  mayor  to  issue  a  warrant  annually 
within  ten  days  from  July  1st,  commanding  police  officers 
to  kill  all  dogs  not  licensed  according  to  law,  whenever  and 
wherever  found,"  is  not  in  conflict  with  the  constitution  of 
Massachusetts.1 

Party  Walls. 

§  102.  Power  in  a  charter  to  pass  ordinances  "to 
authorize  the  erection  of  party  walls  and  fences,  and  to 
regulate  them,"  includes  the  power  to  authorize  their  erec- 
tion upon  the  application  of  either  owner,  and  without  the 
consent  of  the  X)ther  ;   and  such  an  ordinance  is  not  uncon- 

the  beginning:  13  Pick.  384;  4  lb.  258;  21  lb.  55;  13  Met.  407;  7  Cush. 
355;  9  Pick.  14;  12  Met.  118;  23  Pick.  255;  12  Met.  198.  Owner  cannot 
legally  break  pound  and  rescue  animals:  5  Pick.  514;  5  Cush.  267.  Pound 
defined :  2  Cush.  305.  Marshal  cannot  delegate  his  authority  to  others  to 
impound  for  him  generally,  and  in  his  absence,  but  may  have  assistants  to 
act  in  concert  with  him:  Jackson  v.  Morris,  1  Denio,  199.  Officers  must 
use  the  public  pound:  1  Rhode  Island,  219.  Replevin  does  not  lie  against 
a  pound-keeper,  at  common  law,  while  the  creatures  are  in  his  legal 
custody.  Co.  Litt.  47  B. ;  lb.  145  B. ;  1  Chit.  PI.  159 ;  Pritchard  v.  Stevens, 
6  Durn.  &  E.  522 ;  Isley  v.  Stubbs,  5  Mass.  283 ;  Smith  v.  Huntington,  3  N. 
H.  76;  but  it  does  lie  if  he  voluntarily  parts  with  his  legal  control  over 
them,  or  if  he  impounds  them  in  any  other  places  than  those  prescribed  by 
the  law,  as,  for  example,  in  his  pasture  or  barn,  although  this  be  done  the 
more  conveniently  to  furnish  them  with  food  and  drink:  Bills  v.  Kinson,  1 
Foster  (N.  H.)  448,  1850.  In  New  Hampshire,  if  creatures  are  found 
"  doing  damage,"  they  may  be  impounded  and  appraisers  are  to  ascertain 
"whether  any  damage  was  done;"  heid  that  the  statute  contemplated 
actual,  and  not  merely  nominal  damages,  to  justify  impounding:  Osgood 
v.  Green,  33  N.  H.  318,  and  cases  cited.  As  to  power  to  take  up  and  forfeit 
animals  at  large,  see  also,  chapter  on  Ordinances,  post. 

1  Blair  v.  Forehand,  100  Mass.  136.  The  act  of  July  3d,  1863,  entitled 
"an  act  in  relation  to  damages  occasioned  by  dogs,"  so  far  as  it  undertakes 
to  charge  the  owner  with  the  amount  of  damage  done  by  his  dog,  as  fixed 
by  the  selectmen  of  the  town,  without  an  opportunity  to  be  heard,  is  un- 
constitutional;  because  it  is  contrary  to  natural  justice  and  not  within  the 
scope  of  legislative  authority  conferred  by  the  constitution  on  the  general 
court,  and  also  because  it  is  in  violation  of  the  provision  of  the  bill  of  rights 
which  secures  the  right  of  trial  by  jury  in  all  controversies  concerning  prop- 
erty, except  in  cases  where  it  had  not  theretofore  been  used  and  practiced : 
East  Kingston  v.  Towle,  48  N.  H.  The  legislature  have  power  to  make 
towns  liable  for  damage  done  within  their  limits  by  dogs,  and  to  givetoAns 
a  right  of  action  to  recover  the  actual  damage  from  the  owners  of  the 
dogs,     lb. 


218  MUNICIPAL     CORPORATIONS.  [Ch.  VL 

stitutional  because  compensation  is  not  provided   for  the 
land  occupied  by  the  wall.' 

Public  Defense. 

§  103.  Daring  the  late  rebellion,  acts  were  passed  by 
many  of  the  legislatures  of  the  adhering  states,  in  effect 
authorizing  municipalities  to  raise  money,  by  loans  and 
taxation,  to  pay  bounties  to  volunteers,  to  enable  the  muni- 
cipality to  fill  its  quota  under  the  calls  of  the  president  for 
troops,  and  thereby  avoid  an  anticipated  draft.  The  con- 
stitutional principles  involved  in  legislation  of  this  character 
will  be  found  learnedly  discussed  in  the  cases  below  cited, 
which  fully  establish  the  validity  of  such  legislation."  But, 
without  express  authority,  a  municipality  possesses  no  such 
power;3  yet  if  exercised,  it  may  be  validated  by  subse- 
quent legislative  action.* 

Aid  to  Railroad  Companies. 

§  104.  The  most  noted  of  extraordinary  powers  con- 
ferred upon  municipal  and  public  corporations  is  the 
authority  to  aid  in  the  construction  of  railways  by  subscrib- 
ing to  their  stock,  and  taxing  the  inhabitants  or  the  prop- 
erty within  their  limits  to  pay  the  indebtedness  thereby 
incurred.  Legislation  of  this  kind  had  its  origin  within  a 
period  comparatively  recent,  and  has  been  more  or  less  re- 
sorted to,  at  times,  by  almost  every  state  in  the  Union.     As 

1  Hunt  v.  Ambruster,  17  K  J.  Eq.  208,  1865. 

J  Speer  v.  School  Directors,  50  Pa.  St.  150,  two  judges  dissenting.  See 
Hilbisk  v.  Catherman,  64  Pa.  St.  154,  1870,  where  the  prior  cases  in  that 
state  are  commented  on  by  Agnew,  J.  State  v.  Richland  Township,  20  Ohio 
St.  362;  Thompson  v.  Pittson,  59  Maine,  545;  Broadhead  v.  Milwaukee,  19 
Wis.  652;  Booth  v.  Woodbury,  32  Conn.  118;  Shackford  v.  Newington,  46 
N.  H.  415;  Lowell  v.  Oliver,  8  Allen  (Mass.)  247;  Freeland  v.  Hastings,  10 
Allen,  570;  Coiner  v.  Folsom,  13  Minn.  219;  Cooley  Const.  Lim.  219-229; 
Veazie  v.  China,  50  Maine,  518. 

3  Stetson  v.  Kempton,  13  Mass.  272;  Fiske  v.  Hazzard,  7  Rh.  Is.  438; 
Shackford  v.  Xewington,  supra;  ante,  sec.  13. 

4  Booth  v.  Woodbury,  32  Conn.  118;  Kunkle  v.  Franklin,  13  Minn.  127; 
Comer  v.  Folsom,  13  Minn.  219;  Hilbish  v.  Catherman,  64  Pa.  St.  154,  18r<0- 
State  v.  Richland  Township,  20  Ohio  St.  362,  1870;  ante,  sec.  46. 


Ch.  VI]  MUNICIPAL     CHARTERS.  219 

it  is  an  author's  duty,  in  a  work  of  this  character,  to  state 
what  the  law  is,  rather  than  what,  in  his  judgment,  it  ought 
to  be,  he  feels  constrained  to  admit  that  a  long  and  almost 
unbroken  line  of  judicial  decisions  in  the  courts  of  most  of 
the  states  has  established  the  principle  that,  in  the  absence 
of  special  restrictive  constitutional  provisions,  it  is  compe- 
tent for  the  legislature  to  authorize  a  municipal  or  public 
corporation  to  aid,  in  the  manner  above  indicated,  the  con- 
struction of  railways  running  near,  or  to,  or  through  them. 
The  cases  on  this  subject  are  referred  to  in  the  note; '  but, 

1  Goddin  v.  Crump  (act  authorizing  the  city  of  Richmond  to  subscribe 
stock  in  a  company  incorporated  to  improve  the  navigation  of  the  James 
river,  and  to  build  a  road  to  the  falls  of  the  Kanawha  river).  8  Leigh  (Va.) 
120,  1837.  This  is  the  earliest  case  of  the  class.  Bridgeport  v.  Railroad 
Company,  15  Conn.  475,  1843;  Society,  &c.  v.  New  London,  29  Conn.  174; 
Nichol  v.  Nashville,  9  Humph.  (Tenn.)  252,  1848 ;  Powers  v.  Superior  Court, 
23  Geo.  65,  1857;  Talbot  v.  Dent,  9  B.  Mon.  (Ky.)  526,  1849;  Slack  v.  Rail- 
road Company,  13  lb.  1,  1852;  Maddox  v.  Graham,  2  Met.  (Ky.)  56;  Com- 
monwealth v.  Mc Williams,  11  Pa.  St.  61,  1849;  Sharpless  v.  Mayor,  &c,  21 
lb.  147;  lb.  188;  Commonwealth  v.  Perkins,  43  Pa.  St.  410;  47  lb.  189; 
Cotton  v.  County  Commissioners,  6  Flor.  610,  1856;  Railroad  Company  v. 
Commissioners,  1  Ohio  St.  77,  1852;  Cass  v.  Dillon,  2  lb.  607,  1853;  Ohio 
v.  Commissioners,  &c,  6  lb.  280;  7  lb.  327;  8  lb.  394;  12  lb.  596,  624;  14 
lb.  569 ;  Strickland  v.  Railroad  Company,  27  Miss.  209 ;  City  v.  Alexander, 
23  Mo.  483,  1856;  39  lb.  485;  Leavenworth  County  v.  Miller,  Supreme 
Court  of  Kansas,  1871,  7  Kansas,  479.  The  opinion  of  Valentine,  J.,  covers 
the  whole  ground  of  controversy.  Kingman,  C.  J.,  concurred,  and  Brewer, 
J.,  dissented.  Clarke  v.  Rochester,  24  Barb.  446,  1857;  Bank  of  Rome  v. 
Rome,  18  N.  Y.  38,  1858;  Starin  v.  Genoa,  23  N.  Y.  431,  1861;  People  v. 
Mitchell,  35  N.  Y.  551,  1866;  Police  Jury  v.  Succession  of  McDonough,  8 
La.  An.  341;  Aurora  v.  West,  9  Ind.  74,  1857;  22  lb.  88;  Robinson  v.  Bid- 
well,  22  Cal.  379;  Stein  v.  Mayor,  &c,  24  Ala.  591,  1854;  Gibbons  v.  Rail- 
road Company,  36  Ala.  410;  Prettyman  v.  Supervisors,  19  111.  406,  1858; 
S.  P.  24:1b.  75,  208;  Butler  v.  Dunham,  27  111.  474,  1861;  Robertson©. 
Rockford,  21  111.  451 ;  and  see,  also,  as  to  authority  to  precinct  to  levy  tax 
to  maintain  a  bridge,  Shaw  v.  Dennis,  5  Gilm.  (111.)  405;  San  Antonio  v. 
Jones,  28  Texas,  19;  Copes  v.  Charleston,  10  Rich.  (S.  C.)  136,  1857;  Au- 
gusta Bank  v.  Augusta,  49  Maine,  507;  Clark  v.  City,  &c,  10  Wis.  136;  lb. 
195,  1859  (compare  Whiting  v.  Sheboygan  Railroad  Company,  infra).  The 
Supreme  Court  of  Wisconsin,  in  an  opinion  delivered  in  Phillips  v.  Albany, 
28  Wis.  340,  1871,  say,  the  power  of  the  legislature  to  authorize  municipal 
subscriptions  to  the  stock  of  railroads  is  settled  by  former  decisions  in  this 
state,  as  well  as  in  other  states,  though  the  majority  of  this  court  would  be 
disposed  to  deny  the  power,  if  it  were  a  new  question.  S.  P.  Rogan  v. 
Watertown,  30  Wis.  259,  1872;  Lawson  v.  Railway  Co.,  30  Wis.  597.      The 


22()  MUNICIPAL     CORPORATIONS.  ;Ch.  VI. 

notwithstanding  the  opinion  of  so  many  li  arned  and  emi- 
nent judges,  there  remain  serious  doubts  as  to  the  soundness 

Supreme  Court  of  the  United  States  have  decided,  that  the  power  may  be 
conferred  by  the  legislature.  Infra,  sec.  105a.  Thompson  v.  Lee  County,  3 
Wall.  327;  Knox  County  v.  Aspinwall,  21  How.  (U.  S.)  539,  547,1858; 
Zabriskie  v.  Railroad  Company,  23  lb.  381;  Amey  v.  Mayor,  24  1  b.  365, 
376:  Gelpcke  v.  Dubuque,  1  Wall.  175,  1863;  Mercer  County  v.  Hacket.  lb. 
81  ;  Meyer  v.  Muscatine,  lb.  384;  Caldwell  v.  Justices,  4  Jones  (N.  C.)  Eq. 
323;  Taylor  v.  Newberne,  2  lb.  141,  1854;  S.  P.  Hill  v.  Forsyth e  Co.,  67 
N.  C.  367,  1870.  In  Iowa  the  constitutionality  of  railroad  subscriptions  by 
municipalities  was  first  (1853)  affirmed  in  Dubuque  County  v.  Railroad  Com- 
pany, 4  G.  Greene,  1;  afterwards  (1862)  denied,  State  v.  Wapello  County, 
13  Iowa,  388;  denial  adhered  to  down  to  1869,  Hanson  v.  Vernon,  27  Iowa, 
28;  but  note  the  virtual,  yet  not  acknowledged,  overthrow  of  the  line  of 
decisions  denying  the  power,  in  Stewart  v.  Polk  County,  30  Iowa,  1,  1870. 
The  legislative  and  judicial  history  of  the  subject  is  fully  stated  in  King  v. 
Wilson.  1  Dillon's  C.  C.  R.  555,  1871.  By  the  constitution  of  Tennessee, 
the  legislature  has  power  to  authorize  counties  and  incorporated  towns  to 
impose  taxes  for  "  county  and  corporation  purposes."  In  Nichol  v  Mayor, 
&c.  of  Nashville,  9  Humph.  252,  1848,  it  was  held,  notwithstanding  this 
provision,  that  the  legislature  possessed  the  power  to  authorize  municipal 
corporations  to  subscribe  for  the  stock  of  railway  companies  whose  roads 
run  to  or  near  such  corporations,  and  that  this  was  a  legitimate  corporate 
purpose.  So,  in  Florida,  held  to  be  a  "county  purpose,"  within  the  mean- 
ing of  the  constitution  ;  but  quosre?  There  is  nothing  in  the  constitution  of 
Alabama  prohibiting  the  legislature  from  authorizing  a  municipal  corpora- 
tion to  levy  a  tax  on  the  real  estate  within  the  corporation  to  aid  in  the 
construction  of  a  railroad,  even  though  the  road  extends  beyond  the  limits 
of  the  corporation,  or  even  of  the  state.  So  held,  in  Stein  v.  Mobile,  24 
Ala.  591,  1854.  An  act  authorizing  a  municipal  corporation  to  borrow 
money  to  aid  in  the  construction  of  a  railroad,  upon  the  written  assent  of 
two-thirds  of  the  resident  tax-payers,  or  upon  the  approval  of  two-thirds  of 
the  tax-paying  electors,  is  constitutional  and  valid;  and.it  is  not  open  to 
the  objection  that,  it  submits  a  legislative  question  to  the  town.  Starin  v. 
Genoa,  23  N.  Y.  439,  1861;  Gould  t>.  Sterling,  lb.  439.  456;  Bank  of  Rome 
«.  Rome,  18  N.  Y.  38.  These  cases  distinguished  on  this  point  from  Barto 
v.  Himrod,  4  Seld.  483.     Ante,  sec.  23. 

Since  the  first  edition  of  this  work  the  Supreme  Court  of  Minnesota  has 
affirmed  the  validity  of  compulsory  aid  to  railways,  and  that  it  is  wholly 
for  the  legislature  to  determine  whether  the  aid  shall  be  by  subscribing  to 
the  stock  and  issuing  bonds  in  payment  or  by  a  donation  of  money  or  bonds 
to  secure  their  construction,  the  court  in  either  case  regarding  the  use  to  be 
a  public  use  for  which  taxation  may  be  authorized.  Davidson  v.  Ramsey 
County,  18  Minn.  482,  1872.  And  the  validity  of  such  legislation  has  also 
been  affirmed  by  the  Supreme  Court  of  Nebraska;  Crounse  and  'Lake,  33. 
concurring,  and  Mason,  C.  J.,  dissenting.  The  opinion  of  Crounse,  J.,  re- 
views the  principal  cases.     Hallenbeck  b.  Hahn,  2  Neb.  377. 


Ch.  VI. ]  MUNICIPAL     CHARTERS.  221 

of  the  principle,  viewed  simply  as  one  of  constitutional  law. 
Regarded  in  the  light  of  its  effects,  however,  there  is  little 
hesitation  in  affirming  that  this  invention  to  aid  the  enter- 
prises of  private  corporations  has  proved  itself  baneful  in 
the  last  degree. 

§  105.  It  is  not  proposed  here  to  enter  into  a  discussion 
of  the  constitutional  principles  involved  in  such  legislation. 
The  arguments  in  favor  of  the  power  are  fully  presented  in 
the  leading  case  of  Sharpless  v.  The  Mayor, '  and  against  it 
in  Hanson  v.  Vernon,2  in  Whiting  v.  Sheboygan  Railway 
Company,3  and  in  The  People  v.  Township  Board  of  Salem,4 

1  Sharpless  v.  Mayor,  21  Pa.  St.  147.  See,  also,  Am.  Law  Rev.  Oct., 
1870;  infra,  sec.  105  a. 

1  Hanson  v.  Vernon,  27  Iowa,  28,  1869. 

»  Whiting  v.  Sheboygan  Railway  Co.,  9  Am.  Law  Reg.  (N.  S.)  156, 1870; 
S.  C,  25  Wis.,  opinion  by  Dixon,  C.  J. ;  Rogan  v.  Watertown,  30  Wis.  259, 
1872. 

4  Reople  v.  Township  Board  of  Salem,  9  Am.  Law  Reg.  (N.  S.)  487,  and 
notes,  1870;  S.  C,  20  Mich.  452.  "  Bonds  like  these  are  of  modern  inven- 
tion, and  when  counties  and  towns  were  decoyed  into  the  use  of  them  for 
the  purpose  of  railroad  corporations,  they  had  to  obtain  enabling  statutes 
before  they  could  prostitute  municipal  seals  to  any  such  purpose.  And  as 
soon  as  the  people  [of  Pennsylvania]  began  to  feel  the  consequences  of  ap- 
plying the  fundamental  principle  of  commercial  paper  to  their  bonds,  they 
altered  their  organic  law  so  as  to  render  such  bonds  and  enabling  statutes 
impossibilities  in  the  future."  Per  Woodward,  C.  J.,  County  v.  Brinton,  47 
Pa.  St.  367,  1864.  The  evil  of  these  subscriptions  was  the  cause  of  the 
amendment  to  the  constitution.  Per  Bead,  J.,  Pennsylvania  Railroad  Co. 
v.  Philadelphia,  lb.  193.  The  amended  constitutional  provision  in  Penn- 
sylvania is  as  follows:  "The  legislature  shall  not  authorize  any  county,  city, 
oorough,  township,  or  incorporated  district,  by  virtue  of  a  vote  of  its  citi- 
zens, or  otherwise,  to  become  a  stockholder  in  any  company,  association,  or 
corporation,  or  obtain  money  for,  or  loan  its  credit  to,  any  corporation, 
association,  institution,  or  party."  Sec.  7,  art.  XI.,  Amendment  to  Consti- 
tution, 1857.  See  Pennsylvania  Railroad  Co.  v.  Philadelphia,  47  Pa.  St. 
189,  for  construction  of  this  amendment. 

The  Ohio  Constitution  (art.  VHI.  sec.  6)  provides  that  "the  General 
Assembly  shall  never  authorize  any  county,  city,  town,  or  township,  by  vote  of 
its  citizens  or  otherwise,  to  become  a  stockholder  in  any  joint  stock  company, 
corporation,  or  association  whatever;  or  to  raise  money  or  loan  its  credit  to, 
or  in  aid  of,  any  such  company,  corporation,  or  association ; "  and  this  was 
held  not  to  prohibit  the  legislature  from  authorizing  a  municipal  corpora- 
tion to  engage  in  building  a  railroad  mainly  outside  of  the  state  on  its  own 


222  MUNICIPAL     CORPORATIONS.  [Oh.  VL 

to  which,  and  to  the  other  cases  before  cited,  the  reader  is 
referred.  The  judgments  affirming  the  existence  of  the 
power  have  generally  met  with  strong  judicial  dissent  and 

account.  "Walker  v.  Cincinnati,  21  Ohio  St.  14,  1871;  S.  C,  11  Am.  Law 
Reg.  (N.  S.)  346,  and  note  of  Judge  Reclfielil.  Considering  the  evil  which 
this  provision  of  the  constitution  was  aimed  at,  it  seems  difficult  to  avoid 
the  conclusion  that  this  construction  thwarts  the  intention  and  purpose  for 
which  the  provision  was  designed  and  adopted. 

This  case  illustrates  the  dangerous  nature  of  the  invention  of  bringing 
the  taxing  power  to  aid  in  the  building  of  railway  lines,  and  particularly 
does  it  subvert  all  previous  notions  of  the  appropriate  powers,  functions, 
and  duties  of  municipalities.  Here  a  single  city,  in  the  face  of  the  consti- 
tution, was  authorized  to  borrow  $10,000,000  and  issue  its  bonds  in  pay- 
ment, to  be  appropriated  to  the  construction  of  a  long  railroad  line  by  itself 
and  for  itself,  lying  chiefly  iu  other  states,  and  yet  the  validity  of  the  act 
giving  the  authority  was  sustained.  In  May  of  the  present  year,  1873,  the 
same  constitutional  provision  was  before  the  Supreme  Court  of  the  state, 
and  the  act  of  1872,  mentioned  below,  was  held  to  be  in  conflict  with  it, 
since  the  legislature  could  not  do  indirectly  what  it  was  prohibited  from 
doing  directly.      The  court  are  said,  in  a  case  not  yet  reported,  to  have 

held: 

1.  Taxation  can  only  be  authorized  for  public  purposes.  When,  there- 
fore, a  statute  authorizes  a  county,  township,  or  municipality  to  levy  taxes 
not  above  a  given  per  cent,  on  the  taxable  property  of  the  locality  for  the 
purpose  of  building  so  much  of  a  railroad  as  can  be  built  for  that  amqunt, 
and  the  part  of  a  railroad  so  to  be  built  can  be  of  no  public  utility  unless 
used  to  accomplish  an  unconstitutional  purpose,  such  tax  is  illegal  and  can- 
not be  enforced. 

2.  Where  public  credit  or  money  is  furnished  by  any  of  the  subdivisions- 
of  the  state  named  in  the  constitution,  to  be  used  in  part  in  the  construc- 
tion of  a  work  which,  under  the  statute  authorizing  its  construction,  must 
be  completed,  if  completed  at  all,  by  other  parties  out  of  their  own  means, 
who  are  to  own,  or  have  the  beneficial  control  and  management  of  the  work 
when  completed,  public  money  or  credit  thus  used  can  only  be  regarded  as 
furnished  for,  or  in  aid  of  such  parties. 

The  act  of  April  23,  1872,  to  authorize  counties,  townships,  and  other 
municipalities  therein  named  to  build  railroads,  &c.  [59  O.  L.  84],  author- 
izes the  raising  of  money  by  taxation,  which  is  equally  applicable  to  the  un- 
lawful purpose  of  aiding  railroad  companies,  and  others  engaged  in  build- 
ing and  operating  railroads,  as  it  is  any  lawful  purpose,  and  gives  to  the 
officers  entrusted  with  the  control  and  operation  of  the  money  thus  raised, 
no  means  or  power  of  discrimination  as  to  the  lawfulness  of  the  work  or 
purpose  to  which  it  is  to  be  applied,  and  this  in  contravention  of  sec.  6, 
art.  VIII.  of  the  Constitution,  and  therefore  void. 

The  Constitution  of  Indiana  provides  that  "  No  county  shall  subscribe 
for  stock  in  any  incorporated  company,  unless  the  same  be  paid  for  at  the 
time  of  such   subscription."     Art.  10,  sec.  10.     What  is  an  "  incorporated 


Crr.  VI.]  MUNICIPAL     CHARTERS.  223 

with  much  professional  disapproval,  and  experience  has 
demonstrated  that  the  exercise  of  it  has  been  productive  of 
bad  results.  Taxes,  it  is  everywhere  agreed,  can  only  be 
imposed  for  public  objects,  and  taxation  to  aid  in  building 
the  roads  of  private  railway  companies,  even  if  the  use  is 
a  public  use,  is  hardly  consistent  with  a  proper  respect  for 
the  inviolability  of  private  property  and  individual  rights. 
Fraud  usually  accompanies  the  exercise  of  the  power,  and 
extravagant  indebtedness  is  the  result ;  and,  sooner  or  later, 
the  power  will  be  denied  either  by  constitutional  provision 
(as  in  Pennsylvania,  Ohio,  and  Illinois,  it  already  is)  or  by 
legislative  enactment.  It  is  too  late  to  expect,  in  view  of 
the  line  of  decisions  referred  to,  that  the  courts  in  the  states 
which  have  already  passed  upon  the  question  will  retrace 
their  steps,  and  too  much  to  hope  that  the  courts  in  other 
states  will  have  the  boldness  successfully  to  stem  the  strong 
tide  of  authority,  strengthened,  as  it  will  be,  by  temporary 
popular  feeling  and  insidious  corporate  influence. 

§  105a.  Since  the  first  edition  of  this  work,  the  Su- 
preme Court  of  the  United  States,  following  repeated  in- 
timations of  its  judges  in  previous  cases,  have  directly  sus- 
tained the  validity  of  legislative  acts  authorizing  municipal 
aid  to  railways.1  In  view  of  the  prior  adjudications  of  that 
tribunal  in  the  municipal  bond  cases,  referred  to  in  tin1 
chapter  on  Contracts,  and  of  the  almost  uniform  holding  of 
the  State  Courts,  no  other  result  could  have  been  anticipated. 
This  ends  judicial  discussion,  if  it  does  not  terminate  doubts. 
The  Supreme  Court,  in  reaching  this  result,  places  its  judg- 
ment upon  the  ground  that  highways,  turnpikes,  canals  and 
railways,  although  owned  by  individuals  under  public 
grants  or  by  private  corporations,  are  publici  juris  ;  that 
they  have  always  been  regarded  as  governmental  affairs, 

company,"  and  how  and  when  stock  may  be  paid 'for,  see  Lafayette,  &c. 
Railroad  Company  v.  Geiger,  34  Ind.  185,  1870,  where  the  subject  is  very 
elaborately  considered  by  Bushirl\  J.  John  v.  Cin.,  &c.  Railroad  Co.,  35 
Ind.  539;  Aspinwall  v.  Jo  Daviess  Co.,  22  How.  364. 

1  Olcutt  v.  Supervisors,  Dec.  Term,  1872;  Railroad  Co.  v.  Otoe  County, 
Dec.  Term,  1872;  S.  C,  reprinted,  2  Neb.  496;  St.  Joseph  Township  v. 
Rogers,  Dec.  Term,  1872;  S.  C,  7  Albany  Law  Journal,  362;  Rogers  o.  Bur- 
lington, 3  Wall.  654 ;  Mitchell  v.  Burlington,  4  Wall.  270. 


224  MUNICIPAL     C0RP0KAT10NS.  [Ch.   VI. 

and  their  establishment  and  maintenance  recognized  as 
among  the  most  important  duties  of  the  State,  in  order  to 
facilitate  transportation  and  easy  communication  among  its 
different  parts  ;  and  hence  the  State  may  put  forth,  in  favor 
of  such  improvements,  both  its  power  of  eminent  domain 
(as  it  constantly  does)  and  its  power  to  tax,  unless  there  be 
some  special  restriction  in  the  constitution  of  the  particular 
State.  These  powers  may,  in  the  judgment  of  the  court,  be 
lawfully  exerted,  because  the  use  is  in  its  nature  a  public 
use,  and  these  works  are  subject  to  public  control  and  regu- 
lation (except  so  far  as  this  right  has  been  lawfully  parted 
with  by  valid  legislative  contract),  notwithstanding  they 
may  be  exclusively  owned  by  private  persons  or  corpo- 
rations. It  must  be  admitted  that  compulsory  taxation  in 
favor  of  railways  and  like  public  improvements  owned  by 
individuals  or  companies  is  an  exercise  of  power  going  quite 
to  the  verge  of  legislative  authority.  Although  it  is  a  doc- 
trine that  must  now  be  considered  as  judicially  settled,  still 
it  is  one  which  has,  as  we  think,  justly  encountered  a  vigor- 
ous opposition,  both  on  the  ground  of  expediency  and 
of  power,  and  the  exercise  of  the  authority  has,  as  before 
noticed,  been  so  disastrous  as  already,  in  some  of  the  States, 
to  have  led  to  constitutional  provisions  for  the  protection  of 
the  citizen. 

§  105b.  But  it  is  obvious,  from  this  statement  of  the 
grounds  upon  which  the  validity  of  such  legislation  rests, 
that  it  furnishes  no  support  for  the  validity  of  taxation  in 
favor  of  enterprises  and  objects  which  are  essentially  pri- 
vate. We  consider  the  principle  equally  sound  and  salu- 
tary, that  the  mere  incidental  benefits  to  the  public  or  the 
State,  or  any  of  its  municipalities  or  divisions,  which  result 
from  the  pursuit  by  individuals  of  ordinary  branches  of 
business  or  industry,  do  not  constitute  a  public  use  in  the 
legal  sense,  which  justifies  the  exercise  either  of  the  power 
of  eminent  domain  or  of  taxation.  It  would  have  been  well, « 
in  our  judgment,  if  this  doctrine  had  been  extended  in  its 
application  to  railway  companies  ;  but  it  cannot  be  aban- 
doned without  unsettling  the  foundations  of  individual 
rights,  without  recognizing  legislative  omnipotence  over 
private  property,  or  the  irresponsible  despotism  of  a  local 


Ch.  VI.]  MUNICIPAL     CHARTERS.  225 

majority,  and  unwisely  opening  the  way  for  frauds  and 
abuses  which,  in  view  of  the  past,  cannot  be  contemplated 
without  deep  anxiety.1 

1  The  doctrine  of  the  text  finds  interesting  illustrations  in  several  cases 
recently  determined.  One  is  Lowell  v.  Boston,  decided  by  the  Supreme 
Judicial  Court  of  Massachusetts  in  1873.  After  the  great  fire  in  Boston,  in 
1872,  the  legislature  enacted  that  the  city  might  issue  its  bonds  to  the 
amount  of  §20,000,000,  the  proceeds  of  which  three  commissioners  appointed 
by  the  Mayor  were  authorized  to  loan  in  a  safe  and  judicious  manner  "in 
such  sums  as  they  shall  determine  to  the  owners  of  land,  the  buildings 
upon  which  were  burned  by  the  fire  in  said  Boston,  on  the  9th  and  10th 
days  of  November,  1872,  upon  the  notes  or  bonds  of  said  owners  secured 
by  first  mortgages  of  said  land;  said  mortgages  to  be  conditioned  that  the 
rebuilding  shall  be  commenced  within  one  year  from  the  first  day  of  Janu- 
ary, 1873,  and  said  commissioners  to  have  full  power  to  apply  the  proceeds 
of  said  bonds  in  making  said  loans  in  such  manner,  and  to  make  such 
further  provisions,  conditions  and  limitations  in  reference  to  said  loans, 
and  securing  the  same,  as  shall  be  best  calculated,  in  their  judgment,  to 
insure  the  employment  of  the  same  in  rebuilding  upon  said  land  burned 
over,  and  the  payment  thereof  to  the  said  city." 

It  will  be  seen  that  the  object  of  this  act,  as  shown  by  its  provisions, 
was  u  to  insure  the  speedy  rebuilding  on  land  the  buildings  upon  which 
were  burned  "  by  the  great  fire ;  and  the  question  was  as  to  the  right  of  the 
State  to  impose  any  taxes  for  this  object,  and  this  depended  upon  the 
further  question  whether  this  object  was,  in  a  legal  sense,  a  public  object. 

The  court  distinctly  held,  to  use  the  language  of  the  rescript  send  down 
in  the  case,  that  taxes  can  only  be  laid  "  for  some  public  service  or  some 
object  which  concerns  the  public  welfare;1' that  "the  preservation  of  the 
interests  of  individuals  either  in  respect  of  property  or  business,  although  it 
may  result  incidentally  in  the  advancement  of  the  public  welfare  is,  in  itp 
essential  character,  a  private  and  not  a  public  object."  "  That  the  incidental 
advantages  to  the  public  or  to  the  State  which  result  from  the  promotion  of 
private  interests,  or  the  prosperity  of  private  enterprises  or  business  does 
not  justify  their  aid  by  taxation.  "  That  as  a  Judicial  question  the  case  is 
not  changed  by  the  magnitude  of  the  calamity  which  has  created  the  emer- 
gency." And  finally  the  court  say,  "  The  expenditure  authorized  by  this 
statute  being  for  private  and  not  for  public  objects,  in  a  legal  sense,  it  ex- 
ceeds the  constitutional  power  of  the  legislature,  and  the  city  cannot  legally 
issue  the  bonds  for  the  purposes  named  in  the  act. 

Another  case  is  Allen  v.  Inhabitants  of  Jay,  decided  by  the  Supreme 
Judicial  Court  of  Maine,  July,  1871,  12  Am.  Law  Reg.  N.  S.  481.  The  legis- 
lature authorized  the  town  of  Jay  to  lend  $10,000  to  enable  the  borrowers  to 
build  a  saw-mill  and  grist-mill,  and  to  exempt  the  mills  from  taxation  foi 
ten  years.  On  the  ground  that  the  purpose  was  not  a  public  one,  the  act 
was  adjudged  unconstitutional.  See  opinions  of  the  judges,  58  Maine,  ap- 
pendix, 590,  et  seq.,  given  to  the  House  of  Representatives. 

The  other  case  is  the  Commercial  National  Bank  v.  City  of  Iola,  decided 

15 


2^6  MUNICIPAL     CORPORATIONS.  [Ch.  VI. 

§  106.  The  courts  concur,  with  great  unanimity,  in 
holding  that  there  is  no  implied  authority  in  municipal 
corporations  to  incur  debts  or  borrow  money  iu  order  to  be- 
come subscribers  to  the  stock  of  railway  companies,  and 
that  such,  power  must  be  conferred  by  express  grant.  To 
become  stockholders  in  private  corporations  is  manifestly 
foreign  to  the  usual  purposes  intended  to  be  subserved  by 
the  creation  of  corporate  municipalities,  and  the  practice  of 
bestowing  powers  of  this  kind  is  of  recent  origin,  and  hence 
the  rule,  that  in  order  to  exist  the  authority  must  be  spe- 
cially conferred,  and  cannot  be  deduced  from  the  ordinary 
municipal  grants.1 


by  the  U.  S.  Circuit  Court  for  the  District  of  Kansas,  June,  1873,  to  be  re- 
ported in  2  Dillon  C.  Ct.  Reports.  For  the  same  reasons  the  act  of  the 
legislature  which  authorized  the  city  of  lola  to  appropriate  $50,000  to  aid 
private  persons  in  the  erection  and  equipment  of  buildings,  at  or  near  the 
city,  to  be  used  for  manufacturing  purposes,  was  held  unconstitutional,  and 
the  bonds  void  which  had  been  issued  to  raise  the  money  thus  appropriated. 
The  case  was  distinguished  from  those  relating  to  railway  aid  bonds,  and 
also  construes  the  provision  of  the  constitution  of  the  State  that  "  The  leg- 
islature shall  pass  no  special  act  conferring  corporate  powers."1,1  Ante,  sec.  24a. 
Further,  as  to  extent  and  nature  of  the  taxing  power  and  distinction  be- 
tween public  and  private  use,  see,  post,  sees.  586,587;  Bloodgood  v.  Rail- 
road Co.,  18  Wend.  65;  Jenkins  v.  Andover,  103  Mass.  94,  holding  invalid 
a  statute  authorizing  taxation  in  favor  of  a  private  incorporated  academy. 
Same  principle :  Curtis  v.  Whipple,  24  Wis.  350 ;  People  v.  Salem,  20  Mich. 
452;  Freelandfl.  Hastings,  10  Allen,  570;  Tysons.  School  Directors,  51  Pa. 
St.  9 ;  Thompson  v.  Pittson,  59  Maine,  545,  1871. 

1  Aurora  v.  West,  22  Ind.  88,  508,  1864;  Starin  v.  Genoa,  23  N.  Y. 
439,  1869;  Gould  v.  Sterling,  Ik  439,  456;  Atchison  v.  Butcher,  3  Kansas, 
104,  1865;  Burnes  v.  Atchison,  2  lb.  454;  Bank  v.  Rome,  18  N.  V.  38; 
Bridgeport  v.  Housatonic  Railway  Co.,  15  Conn.  475;  Marsh  v.  Fulton  Co., 
10  Wall.  676,  1870;  Cook  v.  Manufacturing  Co.  1  Sneed  (Tenn.)  698,  1854; 
Nichol  v.  Nashville,  9  Humph.  (Tenn.)  252 ;  City  and  County  of  St.  Louis 
v.  Alexander,  23  Mo.  483,  1856;  Jones  v.  Mayor,  &c,  25  Geo.  610,  1858; 
Oevricke  v.  Pittsburg,  7  Am.  Law  Reg.  725 ;  Duanesburg  v.  Jenkins,  40 
Barb.  574;  French  v.  Teschemaker,  24  Cal.  518,  1864;  People  v.  Mitchell, 
35  N.  Y.  551,  1866;  St.  Joseph  Township  v.  Rogers,  U.  S.  Sup.  Ct.,  Dec. 
T.,  1872;  English  v.  Chicot  County,  26  Ark.  454,  1871;  Thompson  v.  Lee 
County,  3  Wall.  327.  Commercial  Bank  v.  Iola,  2  Dillon  C.  C.  R.,  1873. 
"No  lawyer  doubts  that  a  borough  can  only  subscribe  to  a  railroad  when 
expressly  authorized  by  law."  Black,  C.  J.,  in  Sharpless's  Case,  cited 
Pennsylvania  Railway  Co.  v.  Philadelphia,  47  Pa.  St.  189.  A  railroad  is 
such  a  "  road  "  as  is  embraced  in  the  terms  of  a  charter  by  which  the  com- 
mon council  of  a  city  were   authorized  "to  take  stock  in  any  chartered 


Cn    VI.]  MUNICIPAL     CHARTERS.  227 

Accordingly,  where  a  city  was,  by  charter,  specifically 
authorized  to  construct  wharves,  docks,  piers,  water  works, 
works  for  lighting  the  city,  &c,  and  was  also  authorized, 
upon  certain  formalities,  to  create  a  debt,  this  was  con- 
sidered to  mean  a  debt  for  some  of  these  specified  purposes, 
and  not  to  empower  the  corporate  authorities  to  issue  bonds 
to  aid  in  the  construction  of  a  railroad.1  So  there  is  no  im- 
plied power  in  a  municipal  corporation  to  take  stock  in  a 
manufacturing  company  located  in  or  near  the  corpora- 
tion,3 or  to  aid  or  engage  in  other  enterprises,  essentially 
private.8 

company  for  making  roads  to  said  city."  Railroad  Co.  v.  Evansville,  15 
Ind.  395,  1860 ;  Aurora  v.  West,  9  lb.  74 ;  post,  chapter  on  Contracts.  The 
legislature  may,  before  (Aspinwall  v.  Daviess  County,  22  How.  304),  if  not, 
indeed,  after,  the  subscription  is  made,  but  before  it  is  paid  for,  annul  the 
proceeding  and  authorize  the  municipal  corporation  to  withdraw  the  sub- 
scription and  release  its  right  to  the  stock.  People  v.  Coon,  25  Cal.  635. 
Extent  of  legislative  power,  ante,  chap.  IV. 

1  Lafayette  v.  Cox,  5  Ind.  (Port.)  38,  1854.  As  to  rights  of  bondholders, 
however,  see  post,  Contracts,  and  decisions  in  the  National  and  State  Courts, 
there  cited.  Power  in  general  to  the  city  council  of  Charleston,  by  the 
charter  of  1783,  to  pass,  inter  alia,  "every  other  by-law  as  shall  appear  to 
the  city  council  requisite  and  necessary  for  the  security,  welfare,  and  conve- 
nience of  said  city,"  was  held  by  the  Court  of  Errors  to  authorize  the  city 
to  subscribe  to  the  stock  of  railroad  companies  within  or  without  the  state. 
Copes  v.  Charleston,  10  Rich.  (South  Car.)  Law,  491,  1857;  see  City  Council 
v.  Baptist  Church,  4  Strob.  Law,  306,  308,  for  preamble  to  the  charter  of 
Charleston.  There  can  be  little  doubt  that  this  is  pressing  the  constructive 
powers  of  the  corporation  to  an  unwarrantable  extent. 

Construction  of  special  acts  or  charters  held  to  give  power  to  take  stock  and 
issue  bonds,  Meyer  v.  Muscatine,  1  "Wall.  384,  1863 ;  Curtis  v.  Butler  County, 
24  How.  435;  Gelpcke  v.  Dubuque,  1  Wall.  220;  City  and  County  of  St. 
Louis  v.  Alexander,  23  Mo.  483 ;  Railroad  Company  v.  Otoe  County,  1 
Dillon  C.  C.  338,  1871 ;  Rogers  v.  Burlington,  3  Wall.  654  (compare,  Cham- 
berlain v.  Burlington,  19  Iowa,  395) ;  Fosdick  v.  Perrysburg,  14  Ohio  St. 
472;  Goshorn  v.  County,  1  West  Va.  308;  Taylor  v.  Newberne,  2  Jones 
(North  Car.)  Eq.  141 ;  Caldwell  v.  Justices,  4  lb.  323;  Veeder  v.  Lima,  19 
Wis.  280,  1865.  The  opinion  of  Dixon,  C.  J.,  contains  an  interesting  dis- 
cussion of  the  questions  presented  by  that  case. 

2  Cook  v.  Manufacturing  Co.  1  Sneed  (Tenn.)  698,  1854;  Com.  Nat. 
Bank  v.  Iola,  2  Dillon  C.  C.  R.,  1873. 

3  Clark  a.  Des  Moines,  19  Iowa,  199,  1865;  Hanson  v.  Vernon,  27  Iowa, 
28;  Cooley  Const.  Lim.  212.  A  city  corporation  cannot  subscribe  for 
stock  in  a  steamship  line  without  express  legislative  authority.  Pennsyl- 
vania Railroad  Company  v.  Philadelphia,  47  Pa.  St.  189;  and  since  the  new 


228  MUNICIPAL  _  CORPORATIONS.  [Ch.  VI. 

§  107.  Whether  special  authority  to  a  municipality  to 
borrow  money  to  pay  for  stock  subscribed  to  a  railway 
company  will  impliedly  repeal,  pro  tanlo,  existing  charter 
limitations  upon  the  rate  of  taxation,  is  a  question  depend- 
ing upon  construction,  and  in  relation  to  which  the  courts 
have  differed.  But  the  strong  inclination  of  the  National 
Supreme  Court  seems  to  be  in  favor  of  that  construction 
which  restricts  such  limitations  to  the  exercise  of  the  power 
of  taxation  in  the  ordinary  course  of  municipal  action.1 

§  108.  If  the  power  to  issue  bonds  in  aid  of  railway  and 
other  like  enterprises  does  not  exist,  they  are  void  into 
whosesoever  hands  they  may  come.1  The  power,  when  it  has 
been  conferred,  to  aid  or  engage  in  extra- municipal  enter- 
prises, being  extraordinary  in  its  nature  and  burdensome  to 

constitution  of  Pennsylvania  (art.  XI.  sec.  7,  Amendment  to  Constitution, 
1857),  the  legislature  cannot  give  that  power.  Where  a  charter  recited  its 
purpose  to  delegate  to  the  city  authorities  power  to  make  such  ordinances 
as  the  "contingencies,  or  the  local  circumstances,"  of  the  corporation 
might  require,  and  gave  "  full  power  and  authority  to  make  such  assess- 
ments on  the  inhabitants  of  the  city,  or  those  who  hold  taxable  property 
therein,  for  the  safety,  benefit,  and  advantage  of  the  city,  as  shall  appear  to 
them  expedient,"  the  court  were  of  opinion  that  the  city  might  assess  a  tax 
upon  the  real  estate  within  the  corporation  for  the  purpose  of  constructing 
a  canal  "for  manufacturing  purposes,  and  for  the  better  securing  an  abun- 
dant supply  of  water  for  the  city"  and  if  it  could  not,  yet  that  it  was  com- 
petent for  the  legislature,  as  it  did  by  a  subsequent  act,  to  adopt  and  con- 
firm the  action  of  the  city  in  passing  such  an  ordinance.  Frederick  v. 
Augusta,  5  Geo.  561,  1848.  Aside  from  the  curative  act,  the  correctness  of 
the  view  taken  by  the  court  is  by  no  means  clear.  Ante,  p.  92,  sec.  46; 
sees.  105a,  1056. 

1  Butz  9.  Muscatine,  8  Wall  575,  1869.  Contra,  Clark  v.  Davenport,  14 
Iowa,  494;  Learned  v.  Burlington,  2  Am.  Law  Reg.  (N.  S.)  394,  and  note; 
Leavenworth  v.  Norton,  1  Kansas,  432;  Burnes  v.  Atchison,  2  Kansas,  254. 
And  see  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496 ;  Amey  9.  Allegheny 
City,  24  How.  (U.  S.)  364,  ante,  sec.  89 ;  Fosdick  v.  Perrysburg,  14  Ohio  St. 
472;  Cumberland?).  Magruder,  34  Md.  381,  1871;  see  Assessors  v.  Commis- 
sioners, 3  Brews.  (Pa.)  333. 

s  Marsh  v.  Fulton  County,  supra;  Clay  v.  County,  4  Bush  (Ky.)  154. 
See  further,  chapter  on  Contracts,  post,  where  the  rights  of  bona  fide  hold- 
ere  of  such  instruments  are  considered  at  length.  Dunovan  v.  Green,  57  111. 
30;  Lynde  v.  Winnebago  County,  Supreme  Court  United  States,  January, 
1873.  James  v.  Milwaukee,  United  States  Supreme  Court,  December  T., 
1872.     Post,  sec.  426.     Police  Jury  v.  Britton,  15  Wall.  566. 


Cn.   VI. J  MUNICIPAL    CHARTERS.  229 

the  citizen,  must  (at  least  between  all  persons  except  bona 
fide  holders  of  the  securities)  be  strictly  pursued  according 
to  the  terms  and  conditions  of  the  grant  conferring  it.1 
Thus,  under  an  act  authorizing  town  officers  to  borrow 
money  upon  the  credit  of  the  town,  and  to  pay  it  over  to  a 
railroad  corporation,  to  be  expended  by  it  "  in  grading  and 
constructing  a  railroad."  taking  in  exchange  its  stock  at 
par,  it  is  not  within  the  power  of  municipal  officers  to  make 
a  direct  exchange  of  the  bonds  of  the  town,  even  for  an 
equal  nominal  amount  of  stock,  as  this  leaves  it  in  the 
power  of  the  railroad  corporation  to  sell  such  bonds  at  a 
discount.8  So,  in  a  case  where  a  county  had  by  the  legis- 
lative act  no  authority  to  issue  its  bonds  to  the  railroad 
company  unless  upon  the  sanction  of  a  previous  vote  after 
thirty  days''  notice  of  the  election  to  be  held  for  that 
purpose,  the  Supreme  Court  of  Illinois  held,  in  a  direct  pro- 
ceeding against  the  county  to  enjoin  it  from  issuing  its 
bonds,  that  although  there  was  an  election  at  which  a 
majority  voted  in  favor  of  the  subscription,  yet  the  failure 
to  give  the  thirty  days'  notice  was  a  fatal  defect,  and  the 
issue  of  the  bonds  was  restrained."    It  may  be  observed  in 

1  In  Pennsylvania  the  doctrine  has  been  adopted,  that  equity  will  compel 
the  holder  to  take  what  he  gave  and  interest  where  the  bonds  were  issued 
in  violation  of  statute  ;  but  qucere  ?  See  County  v.  Brinton,  47  Pa.  St.  367  ; 
Pennsylvania  Railroad  Company  v.  Philadelphia,  lb.  193. 

1  Starin  v.  Genoa,  23  N.  Y.  439;  Gould  v.  Sterling,  lb.  439.  In  the 
case  last  cited,  Selden,  J.,  p.  460,  remarks:  "In  the  present  case  the  only 
authority  given  [to  the  town]  by  the  act  is  to  borrow  upon  the  bonds  of 
the  town.  No  express  power  to  sell  the  bonds  is  given,-  and  no  such  power 
can,  I  think,  be  implied.  To  borrow  money,  and  give  a  bond  or  obligation 
for  it,  and  to  sell  a  bond  or  obligation  for  money,  are  by  no  means  identical 
transactions.  In  the  one  case  the  money  and  the  bond  would,  of  course,  be 
equal  in  amount;  in  the  other  they  might  or  might  not  be  equal."  Whether 
such  a  defence  would  be  available  against  a  bona  fide  holder  of  the  bonds 
was  not  determined.  See  Woods  v.  Lawrence  County,  1  Black,  386 ;  Moran 
v.  Miami  County,  2  Black,  722.  That  such  a  defence  is  not  available  against 
a  holder  for  value,  see  2)ost,  sec.  421. 

*  Harding  v.  Rockford,  &c.  Railroad  Co.,  Illinois  Supreme  Court,  May, 
1873,  5  Chicago  Legal  News,  424. 

In  delivering  the  opinion  of  the  court,  Thornton,  J.,  remarks:  "Such 
municipalities  were  not  created  with  the  view  to  engage  in  commerce,  or  to 
aid  in  the  construction  of  railways,  but  for  governmental  purposes  only. 
When  they  exercise  the  functions  given  by  the  statutes  under  consideration, 


230  MUNICIPAL     CORPORATIONS.  [Ch.  VI. 

conclusion,  that  the  Supreme  Court  of  the  United  States,  in 
the  municipal  railway  aid  bond  cases  referred  to  in  a  subse- 
quent chapter,1  have  held  the  doctrine  in  favor  of  the  inno- 
cent  holders  for  value  of  such  securities,  that  the  munici- 
pality may  be  estopped,  by  recitals  in  the  bonds,  by  the 
subsequent  levy  of  taxes  to  pay  interest  thereon,  and  by 
retaining  the  stock  which  was  received  in  exchange  for  the 
bonds  or  purchased  with  their  proceeds,  to  set  up  in  de- 
fence a  non-compliance  with  preliminary  conditions.2  This 
is  a  doctrine,  however,  which  is  asserted  for  the  protection 
of  such  holders,  and  has  no  place  in  controversies  which 
arise  before  the  issue  of  the  bonds,  between  the  tax-payers 
or  municipality  on  the  one  hand,  and  the  company  on  the 
other.  In  such  cases  estoppel  has  no  place,  and  the  sound 
doctrine  is  that  compliance  with  all  substantial  or  material 
conditions  is  essential. 

the  powers  granted  must  not  only  be  clearly  conferred,  but  strictly  pursued. 
If  the  mode  prescribed  for  carrying  into  effect  the  right  to  issue  bonds  is 
not  complied  with  in  all  material  matters,  then  the  bonds  should  not  be 
issued,  and  thus  the  tax-payer  will  be  exempt  from  the  imposition  of 
illegal  taxes,  and  a  grievous  burden  upon  his  property.  These  principles 
have  been  so  elaborately  discussed  and  fully  settled  by  this  court,  that  we 
need  only  refer  to  some  of  the  cases:  The  People  v.  Tazewell  County,  22 
111.  147;  Fulton  County  v.  The  Mississippi  &  Wabash  R.  R.  Co.,  21  111. 
273 ;  Supervisors  of  Schuyler  Co.  v.  The  People,  15  111.  181 ;  Supervisors 
of  Hancock  County  v.  Clark,  27  I  v.  305 ;  Marshall  County  v.  Cook,  38  lb. 
44  ;  Wiley  v.  The  Town  of  Brimfield  (not  reported.)" 

If  aid  has  been  conditionally  voted,  the  condition  must  be  complied 
with  before  the  company  can  demand  the  aid.  Railroad  Co.  v.  Hartford, 
68  Maine,  23. 

1  Post,  chapter  XIV. 

8  Post,  sec.  417,  et  seq. 


Ch.  VII.]  DISSOLUTION.  231 


CHAPTER  VII. 

Dissolution  of  Municipal  Coepoeations. 

In  England. 

§  109.  In  England,  a  municipal  corporation  may  be  dis- 
solved, 1.  By  an  act  of  parliament,  this  power  being  con- 
sidered a  necessary  consequence  of  the  omnipotence  of  that 
body  in  all  matters  of  political  institution.1  The  Icing  may, 
by  his  prerogative,  create,  but  cannot  dissolve  or  destroy  a 
corporation  ;  may  grant  privileges,  but,  when  vested,  cannot 
take  them  away.2 

It  has  there  often  been  declared,  that  a  municipal  cor- 
poration may  also  be  dissolved,  2.  By  the  loss  of  an  integral 
part,  or  the  loss  of  all,  or  of  the  majority  of  the  members  of 
any  integral  part,  without  which  it  cannot  transact  its  busi- 
ness, unless  the  parts  that  remain  have  the  right  to  act  or  to 
restore  the  corporate  succession." 

1  Co.  Litt.  176,  note;  2  Kyd,  447;  Rex  v.  Amery,  2  Term  R.  515;  Glover, 
408;  Angell  &  Ames,  ch.  22,  sec.  767;  2  Kent's  Com.  305;  County  Com- 
missioners v.  Cox,  6  Ind.  403;  State  v.  Trustees,  &c.  5  Ind.  77;  ante, 
sec.  15. 

Ante,  sec.  15;  sec.  16;  Rex  v.  Amery.  supra;  Regents  of  University  v. 
Williams,  9  Gill  and  Johns.  365,  409,  1838.  In  this  case,  Buchanan,  J.,  in 
substance,  observes:  The  crown  may  create,  but  cannot,  at  pleasure,  dis- 
solve a  corporation,  or,  without  its  consent,  alter  or  amend  its  charter. 
Parliament  may  do  this;  but,  restrained  by  public  opinion,  it  has  not  under- 
taken to  dissolve  any  private  corporation  since  the  time  of  Henry  VIII.  so 
that  the  power  to  do  so  rests  wholly  in  theory.  In  1783  a  bill  was  proposed 
to  remodel  the  East  India  Company.  Lord  Thurlow  opposed  it  as  sub- 
versive of  the  law  and  constitution,  and,  in  strong  language,  declared  it  to 
be  "  an  atrocious  violation  of  private  property,  which  cut  every  English- 
man to  the  bone." 

s  Willc.  on  Corp.  325,  chap.  VII.  This  chapter  contains  an  interesting 
discussion  of  the  question  of  dissolution,  and  it  would  seem  that  the  author, 
notwithstanding  the  occasional  judgments  and  the  many  and  broad  dicta  in 
the  books,  doubts  whether  there  can  be  an  actual  and  total  dissolution  of  a 
municipal  corporation,  either  by  the  loss  of  an  integral  part,  or  by  surren 


232  MUNICIPAL    CORPORATIONS.  [Cn.  VIL 

3.  By  a  surrender  of  the  franchise  of  being  a  corpora- 
tion to  the  crown,  whose  acceptance  is  necessary  ;  and  to  be 
effectual  the  surrender  must  be  enrolled  in  chancery.  The 
power  to  surrender  has  been  much  questioned  ;  the  argu- 
ment in  favor  of  it  being,  that  since  by  royal  grant  and  ac- 
ceptance a  corporation  may  be  created,  so  by  surrender 
and  acceptance  it  may  be  annulled.  It  is  admitted,  how- 
ever, that  a  corporation  created  or  confirmed  by  parliament 
or  statute  cannot  dissolve  itself  by  a  surrender  of  its  charter 
or  franchise.1 

4.  By  forfeiture  of  its  charter,  through  negligence  or 
abuse  of  its  franchise,  judicially  ascertained  by  proceedings 
in  quo  warranto  or  scire  facias.  This  mode  of  dissolution 
proceeds  upon  the  doctrine,  well  settled  as  to  private  cor- 
porations, both  in  England  and  in  this  country,  and,  per- 
haps, settled  in  that  country,  also,  as  respects  the  old  muni- 
cipal corporations  when  created  by  royal  charter,  that  there 
is  a  tacit  or  implied  condition  annexed  to  the  grant  of  every 
act  or  charter  of  incorporation,  that  the  grantees  shall  not 

der,  or  by  forfeiture.  But  see  2  Kyd,  ch.  5;  Glover,  ch.  20;  Angell  & 
Ames,  sec.  769;  and  particularly  Rex  v.  Morris  and  Rex  v.  Stewart,  3  East, 
213;  4  East,  17.  In  Rex  v.  Passniore,  2  Term  R.  241,  where  the  subject 
was  much  considered,  Lord  Kenyon  observed,  when  an  integral  part  of  a 
corporation  is  gone,  without  whose  existence  the  functions  of  the  cor- 
poration cannot  be  exercised,  and  the  corporation  has  no  manner  of  supply- 
ing the  integral  part,  the  corporation  is  dissolved  as  to  certain  purposes. 
But  the  king  may  renovate  either  with  the  old  or  new  corporators. 

The  leading  authorities  respecting  the  effect  of  the  loss  of  an  integral 
part  are,  1  Rol.  Abr.  514;  Regina  v.  Bewdley,  1  P.  Wins.  207;  Banbury's 
Case,  10  Mod.  346;  Rex  v.  Tregony,  8  Mod.  129;  Colchester  v.  Seaber,  3 
Burr.  1870;  S.  C,  1  Win.  Bl.  591,  which,  however,  is  said  not  to  be  a  case 
of  the  loss  of  an  integral  part,  but  of  magistrates ;  Grant  Corp.  305,  note ; 
Rex  v.  Passmore,  3  Term  R.  241.  The  foregoing  cases  are  succinctly 
stated  by  Mr.  Kyd,  2  Corp.  ch.  5.  See,  also,  Mayor,  &c.  of  Colchester  v. 
Brooke,  2  Queen's  B.  383,  and  Mr.  Justice  Campbell's  learned  opinion  in 
Bacon  v.  Robertson,  18  How.  (U.  S.)  480,  1855;  infra,  sec.  113,  note; 
People  v.  Wren,  4  Scam.  275,  citing  and  relying  on  Colchester  v.  Seaber, 
supra;  Smith's  Case,  4  Mod.  53;  Smith  v.  Smith,  3  Dessaus.  i^S.  C.)  557; 
Welch  v.  Ste.  Genevieve,  1  Dillon  C.  C.  130;  chapters  on  Corporate  Officers 
and  Corporate  Meetings,  post. 

1  Rex.  v.  Osbourne,  4  East,  326 ;  Rex  v.  Miller,  6  T.  R.  277 ;  Willc.  332, 
pi.  861 ;  Howard's  Case,  Hutt.  87 ;  Grant  on  Corp.  306,  308 ;  Thicknesse  © 
Canal  Co.,  4  M.  &  W.  472. 


Ch.  VII. J  DISSOLUTION.  233 

neglect  to  use,  or  misapply  the  powers  granted,  and  that  if 
they  do,  the  condition  is  broken  upon  which  the  corpora- 
tion was  created,  and  the  corporation  thereupon  ceases  to 
exist.  And  in  the  cases  in  the  time  of  Charles  II.  it  was 
held,  that  the  corporation  might  forfeit  its  franchise  by 
reason  of  the  neglect  or  misconduct  of  its  officers. ' 

In  the  United  States. 

§  110.  These  various  modes  of  dissolution,  except  the 
first,  are  believed  by  the  author  to  be  inapplicable  to  muni- 
cipal corporations  in  this  country  as  they  are  generally 
created  and  constituted.  Here  it  is  the  people  of  the  locality 
who  are  erected  into  a  corporation,  not  for  private,  but  for 
public  purposes.  The  corporation  is  mainly  and  primarily 
an  instrument  of  government.  The  officers  do  not  constitute 
the  corporation,  or  an  integral  part  of  it.  The  existence  of 
the  corporation  does  not  depend  upon  the  existence  of  of- 
ficers. The  qualified  voters  or  electors  have,  indeed,  the 
right  to  select  officers,  but  they  are  the  mere  agents  or  ser- 
vants of  the  corporation,  and  hence  the  doctrine  of  a  disso- 
lution by  the  loss  of  an  integral  part  has,  in  such  cases,  no 
place.  If  all  the  people  of  the  defined  locality  should 
wholly  remove  from  or  desert  it,  the  corporation  would, 
from  necessity,  be  suspended  or  dormant,  or,  perhaps,  en- 

1  1  Blacks.  Com.  485;  2  Kyd,  447;  Willc.  chap.  VII.  325.  et.  seq.; 
Taylors  of  Ipswich,  1  Rol.  5;  Eex  v.  Grosvenor,  7  Mod.  199;  Smith's  Case, 
4  Mod.  55,  58;  S.  C,  12  Mod.  17;  Skin.  311;  1  Show.  278;  Rex  v.  Saunders, 
3  East,  119;  Mayor,  &c.  of  Lyme  v.  Henley,  2  CI.  &  F.  331;  Rex  v.  Kent, 
13  East,  220;  Priestley  v.  Foulds,  2  Scott  N.  R.  205,  225;  Attorney  General 
v.  Shrewsbury,  6  Beav.  220.  The  American  cases  relating  to  the  dissolution 
of  private  corporations  by  forfeiture  of  their  charters;  what  will  constitute 
sufficient  ground  of  forfeiture ;  and  the  mode  of  proceeding  to  ascertain 
and  enforce  the  forfeiture,  are  collected,  and  the  result  very  clearly  and 
satisfactorily  stated,  in  Angell  &  Ames  on  Corporations,  chap.  XXII.  See, 
also,  2  Kent  Com.  305.  Private  corporations  may  lose  their  legal  existence, 
1.  By  the  act  of  the  legislature;  2.  By  the  death  of  all  their  members;  3. 
By  a  forfeiture  of  their  franchises;  and  4.  By  a  surrender  of  their  charter. 
No  other  mode  of  dissolution  is  anywhere  alluded  to.  Boston  Glass  Manuf. 
v.  Langdon,  24  Pick.  49,  52,  per  Morton,  J. ;  Commonwealth  v.  Union  Ins. 
Co.,  5  Mass.  230,  232;  Riddle  v.  Locks  and  Canals,  7  Mass.  169;  School  v. 
Canal,  &c.  Co.,  9  Ohio,  203;  Canal  Co.  v.  Railroad  Co.  4  Gill  &  Johns.  1; 
Vinceuues  University  v.  Indiana,  11  How.  2(58. 


234  MUNICIPAL    CORPORATIONS.  [Ch.  VU. 

tirely  cease ;  but  the  mere  neglect  or  mere  failure  to  elect 
efficers  will  not  dissolve  the  corporation,  certainly  not  while 
the  right  or  capacity  to  elect  remains.1  In  this  respect 
municipal  corporations  resemble  ordinary  private  corpora- 
tions, which  exist  per  se,  and  consist  of  the  stockholders 
who  compose  the  company.  The  officers  are  their  agents, 
or  servants,  but  do  not  constitute  an  integral  part  of  their 
corporation,  the  failure  to  elect  whom  may  suspend  the 
functions,  but  will  not  dissolve  the  corporation.2 

§  111.     Since  all  of  our  charters  of  incorporation  come 

Mr.  Grant,  in  his  work  on  Corporations,  considers  it  doubtful  whether 
an  information  in  the  nature  of  quo  warranto  will  lie,  in  England,  against 
parliamentary  or  statute  corporations,  for  usurping  powers  not  given,  or 
misusing  those  conferred  (Corp.  307,  308;  Rex.  «.  Nicholson,  1  Str.  29) ;  but 
in  this  country,  the  law  as  to  private  corporations  is  indisputably  settled, 
that  in  such  cases  an  information  may  be  brought. 

1  Willc.  chap.  VII.  and  observations  at  pp.  325,  326,  327,  pi.  852 ;  Col- 
chester v.  Seaber,  3  Burr.  1866;  Colchester  v.  Brooke,  7  Queen's  B.  383; 
Rex  i).  Passmore,  3  Term  R.  241 ;  Grant  on  Corp.  308;  Bacon  v.  Robertson, 
18  How.  480;  Lowber  v.  Mayor,  &c.  of  New  York,  5  Abb.  325;  Clarke  v. 
Rochester,  I  J.  107;  Welch  v.  Ste.  Genevieve,  1  Dillon  C.  C.  130,  1871. 
That  the  failure  to  elect  officers  does  not  dissolve,  while  the  capacity  to  elect 
remains,  see,  also,  Philips  v.  Wickam,  1  Paige  Ch.  59 ;  Commonwealth  v. 
Cullen,  1  Harris  (Pa.)  133;  President  v.  Thompson,  20  111.  197;  Rose  v. 
Turnpike  Co.,  3  Watts  (Pa.)  46;  People  v.  Wren,  4  Scam.  (111.)  275;  Brown 
v.  Insurance  Co.,  3  La.  An.  177;  Welch  v.  Ste.  Genevieve,  supra;  Green 
Township,  9  Watts  &  S.  (Pa.)  28;  Vincennes  University  v.  Indiana,  14 
Plow.  268;  Muscatine  Turnverein  v.  Funck,  18  Iowa,  469.  In  Lea  v.  Her- 
nandez, 10  Texas,  137,  1853,  it  appeared  that  a  place  was  incorporated  as  a 
town  prior  to  1848,  that  in  the  year  just  named  the  legislature  passed  an 
act  to  incorporate  the  town,  and  that  no  election  for  officers  nor  any  organ- 
ization was  had  thereunder  for  three  years  and  down  to  the  commencement 
of  the  action,  nor  were  there  any  officers  de  facto  acting.  The  court  held 
that  the  failure  to  elect  officers  operated  to  dissolve  the  corporation,  there 
being  no  express  provision  of  the  charter  to  the  contrary.  But  no  au- 
thorities are  cited  and  no  reasons  given,  and  the  conclusion  that  an  actual 
dissolution  of  the  corporation  resulted  from  a  failure  to  elect,  is  believed  to 
be  unsound. 

The  existence  of  a  municipal  corporation  is  not  considered  to  be  inter- 
rupted in  consequence  of  a  change  in  the  council.  Elmendorf  v.  Ewen, 
N.  Y.  Leg.  Obs.  85 ;  Elmendorf  v.  Mayor,  &c.  of  New  York,  25  Wend.  693. 
Further,  see  chapters  relating  to  Corporate  Officers  and  Corporate  Meetings, 
vost. 

3  Angell  &  Ames  on  Corp.  sec.  771,  and  cases  there  cited ;  People  t. 
Fairbury,  51  111.  149,  1869. 


€h.  VII. ]  DISSOLUTION.  23.5 

from  the  legislature,1  there  can  be  no  dissolution  of  a  muni- 
cipal corporation  by  a  surrender  of  its  franchise.  The  state 
creates  such  corporations  for  public  ends,  and  they  will  and 
must  continue  until  the  legislature  annuls  or  destroys  them, 
or  authorizes  it  to  be  done.  If  there  could  be  such  a  thing 
as  a  surrender,  it  would,  from  necessity,  have  to  be  made 
to  the  legislature,' and  its  acceptance  would  have  to  be  mani- 
fested by  appropriate  legislative  action. 

§  112.  The  doctrine  of  a  forfeiture  of  the  right  to  be  a 
corporation  has  also,  it  is  believed  by  the  author,  no  just  or 
proper  application  to  our  municipal  corporations.11  If  they 
neglect  to  use  powers  in  which  the  public  or  individuals 
have  an  interest,  and  the  exercise  of  such  powers  be  not 
discretionary,  the  courts  will  interfere  and  compel  them  to 
do  their  duty.3  On  the  other  hand,  acts  done  beyond  the 
powers  granted  are  void.4  If  private  rights  are  threatened 
or  invaded,  the  courts  will,  as  hereafter  shown,  restrain  or 
redress  the  injury.6  With  what  surprise  would  we  hear  of 
a  proceeding  to  forfeit  the  charter  of  the  city  of  New  York 
or  Chicago  because  of  the  misconduct  of  its  officers,  or  be- 
cause the  common  council,  as  in  the  famous  case  against 
the  city  of  London,  were  assuming  to  exercise  unauthorized 
powers  by  ordaning  an  oppressive  by-law.  In  short,  unless 
otherwise  specially  provided  by  the  legislature,  the  nature 
and  constitution  of  our  municipal  corporations,  as  well  as 
the  purposes  they  are  designed  to  subserve,  are  such  that 
they  can,  in  the  author's  judgment,  only  be  dissolved  by 
the  consent  of  the  legislature.  They  may  become  inert,,  or 
dormant,  or  their  functions  may  be  suspended,  for  want  of 
officers  or  of  inhabitants,  but  dissolved,  when  created  by  an 
act  of  the  legislature,  and  once  in  existence,  they  cannot  be, 
by  reason  of  any  default,  or  abuse  of  the  powers  conferred, 
either  on  the  part  of  the  officers  or  inhabitants  of  the  in- 

1  Ante,  sec.  17;  sec.  22;  sec.  30. 

*  See  Welch  v.  Ste.  Genevieve,  1  Dillon  C.  C.  130,  1871,  arguendo. 

3  Ante,  chap.  V.  sec.  62 ;  post,  chapter  on  Mandamus. 

4  Ante,  sec.  55,  and  notes. 

•  See  chapter  on  Remedies  to  Prevent,  Correct,  and  Redress  Illegal  Cor- 
porate Acts,  post,  sees.  727-748. 


286  MUNICIPAL     CORPORATIONS.  [Ch.  VU. 

corporated  place.  As  they  can  exist  only  by  legislative 
sanction,  so  they  cannot  be  dissolved  or  cease  to  exist  ex- 
cept by  legislative  consent,  or  pursuant  to  legislative 
provision. 

Effect  of  Dissolution. 

§  113.  At  common  law,  a  corporation,  of  whatever  kind, 
which  was  wholly  dissolved,  was  considered  to  be  civilly 
dead  ;  and  the  effect  was,  that  their  lands  reverted  to  the 
grantor  or  his  heirs,  and  the  debts  of  the  corporation,  wheth- 
er owing  to  or  by  it,  were  extinguished.  Leases  made  by 
the  corporation  would  cease  because  of  the  reversion  of  the 
lands  to  the  original  owners  ;  and,  for  the  same  reason, 
lands  given  to,  or  held  by,  the  corporation  for  charitable 
purposes  would  be  lost.1  These  inconveniences  and  results 
are  so  disastrous  that  the  English  courts,  as  the  more  recent 
cases  before  cited  will  show,  have  doubted  and  limited,  al- 
though they  may  riot  have  overthrown  the  doctrine  that 
municipal  corporations  may  be  totally  dissolved.  These 
consequences  of  a  dissolution  of  a  corporation  attached  to 
all  corporations,  eleemosynary,  municipal,  and  private  ;  and 
since  this  doctrine  has,  in  this  country,  been  generally  re- 
jected as  to  private  corporations  organized  for  pecuniary 
profit,  and  rests  upon  no  foundation  in  reason  or  justice,  it 
may,  perhaps,  be  safely  affirmed  that  it  would  not,  on  full 
consideration,  be  applied  to  the  dissolution  of  a  municipal 
corporation,  by  an  absolute  and  unconditional  repeal  of  its 
charter,  or  (if  that  may  be  done)  to  the  case  where  the 
charter  of  such  a  corporation  is  forfeited  by  judicial  sentence. 
Therefore,  the  leases  of  a  corporation  would  not  be  dis- 
turbed by  its  dissolution,  nor  would  their  lands  held  in  fee 
revert,  nor  would  those  held  in  trust  for  charitable  purposes 
be  lost,  since  equity  would  supply  trustees.2 

1  Co.Litt.  13;  1  Lev.  237;  Knight  v.  Wells,  1  Lut.  519;  Rex  v.  Sanders, 
3  East,  119;  Attorney  General  v.  Gower,  9  Mod.  226;  1  Rol.  Abr.  816; 
Colchester  v.  Seaber,  3  Burr.  1866;  Willc.  330,  pi.  858;  2  Kyd,  516;  Rex 
v.  Passmore,  3  Term  R.  247 ;  Grant  Corp.  305 ;  Colchester  v.  Brooke,  7 
Queen's  B.  383 ;  Commonwealth  v.  Roxbury,  9  Gray,  510,  note. 

3  Ante  sec.  37 ;  sec.  47 ;  chapters  on  Corporate  Boundaries  and  Prop- 
erty, post.  Bacon  v.  Robertson,  18  How.  (U.  S.)  480,  1855;  Girard  v. 
Philadelphia,  7  "Wall.  1,  1868;  Mumma  v.  Potomac  Company,  8  Pet.  281, 


I 


Ch.  VII.]  DISSOLUTION.  237 

§  114.  As  respects  the  creditors  of  a  municipal  corpora- 
tion, their  rights  are  protected  from  the  legislative  invasion 
by  the  Constitution  of  the  United  States,  and  no  repeal  of  a, 

1834;  Curran  v.  Arkansas,  15  How.  (U.  S.)  312;  2  Kent,  307,  note;  Angell 
&  Ames  Corp.  779  a;  Coulter  v.  Robertson,  24  Miss.  278;  County  Com- 
missioners v.  Cox,  6  Ind.  403 ;  State  v.  Trustees,  &c,  5  Ind.  77 ;  Vincennes 
University  v.  Indiana,  14  How.  268;  Owen  v.  Smith,  31  Barb.  641;  Com- 
monwealth v.  Roxbury,  9  Gray,  510,  note. 

The  general  subject  of  the  effect  of  a  dissolution  of  a  corporation  is  exten- 
sively discussed  by  Mr.  Justice  Campbell,  in  Bacon  v.  Robertson,  supra. 
The  case  was  a  bill  in  chancery  by  the  stockholders  of  a  bank,  whose 
charter  had  been  judicially  forfeited,  for  a  distribution  of  the  surplus  after 
the  payment  of  the  debts,  and  the  relief  was  granted.  The  Supreme  Court 
of  the  United  States  seemed  to  be  of  opinion  that,  upon  the  general  princi- 
ples of  equity  jurisprudence,  and  without  statutory  aid,  the  surplus  of  the 
assets  of  a  corporation  for  pecuniary  profit,  after  the  payment  of  debts  and 
expenses,  belonged  to  the  shareholders;  that  the  creditor  of  such  a  corpora- 
tion, dissolved  or  declared  forfeited  by  judgment  upon  quo  warranto  or 
judicial  sentence,  has,  without  a  statute  to  that  effect,  a  claim  in  equity 
upon  the  corporate  property  for  the  satisfaction  of  his  debt;  that  lands 
conveyed  to  the  corporation  in  fee  and  for  a  full  price  do  not  revert,  and 
that  the  stockholder,  as  to  the  surplus  after  paying  the  debts,  stands  upon 
grounds  as  high  and  has  claims  as  irresistible  as  the  creditor  before  had. 
The  usual  consequences  of  a  dissolution,  as  stated  by  the  text  writers,  if 
correct,  which  was  doubted,  were  deemed  inapplicable  to  moneyed  or 
trading  corporations. 

In  the  course  of  his  admirable  opinion,  the  learned  justice  named  ob- 
served :  "  The  common  law  of  Great  Britain  was  deficient  in  supplying  the 
instrumentalities  for  a  speedy  and  just  settlement  of  the  affairs  of  an  insol- 
vent corporation  whose  charter  had  been  forfeited  by  judicial  sentence. 
The  opinion  usually  expressed  as  to  the  effect  of  such  a  sentence  was  un- 
satisfactory and  questioned.  There  had  been  instances  in  Great  Britain  of 
the  dissolution  of  public  or  ecclesiastical  corporations  by  the  exertion  of 
public  authority,  or  as  a  consequence  of  the  death  of  their  members,  and 
parliament  and  the  courts  had  affirmed,  in  these  instances,  that  the  endow- 
ments they  had  received  from  the  prince  or  pious  founders  would  revert  in 
such  a  case.  Stat,  de  terris  Templariorum,  17  Edw.  II. ;  Dean  and  Canons 
of  Windsor,  Godb.  211;  Johnson  v.  Norway,  Winch.  37;  Owen,  73;  6  Vin. 
Abr.  280.  What  was  to  become  of  their  personal  estate,  and  of  their  debts 
and  credits,  had  not  been  settled  in  any  adjudicated  case,  and,  as  was  said 
by  Pollexfen  in  the  argument  of  the  quo  icarranto  against  the  city  of  Lon- 
don, was,  perhaps,  "  non  definitur  in  jure.'1''  [See  ante,  Introductory  Chapter, 
sec.  8.]  Solicitor  Finch,  who  argued  for  the  crown  in  that  cause,  admitted  : 
"I  do  not  find  any  judgment  in  a  quo  warranto  of  a  corporation  being 
forfeited."  Treby,  on  behalf  of  the  city,  said:  "The  dissolving  a  corpora- 
tion by  a  judgment  in  law,  as  is  here  sought,  I  believe  is  a  thine:  that  never 


238 


MUNICIPAL     CORPORATIONS.  [Cu.  V1L 


charter  of  a  municipal  corporation  can  so  dissolve  it  as  to 
impair  the  obligation  of  the  contract,  or,  it  may  probably  be 
safely  added,  preclude  the  creditor  from  recovering  his 
debt.1 

came  within  the  compass  of  any  man's  imagination  till  now;  no,  not  so 
much  as  the  putting  of  a  case.  For  in  all  my  search  (and  upon  this  occa- 
sion I  have  bestowed  a  great  deal  of  time  in  searching)  I  cannot  find  that 
it  even  so  much  as  entered  into  the  conception  of  any  man  before ;  and  I 
am  the  more  confirmed  in  it  because  so  learned  a  gentleman  as  Mr.  Solicitor 
has  not  cited  any  one  such  case  wherein  it  has  been  (I  do  not  say  adjudged, 
but)  even  so  much  as  questioned  or  attempted;  and,  therefore,  I  may  very 
boldly  call  this  a  case  prima  impressionist  The  argument  of  Pollexfen  was 
equally  positive. 

The  power  of  courts  to  adjudge  a  forfeiture  so  as  to  dissolve  a  corpora- 
tion was  affirmed   in  that   case,   but  the  effect  of  that  judgment  was  not 
illustrated  by  any  execution,  and  the  courts  were  relieved  from  their  em- 
barrassment by  an  act  of  parliament  annulling  it.     Smith's  Case,  4  Mod. 
53;  Skin.  310;  8  St.  Trials,    1042,    1052,   1283.     Nor  have  the  discussions 
since  the  revolution  extended  our  knowledge  upon  this  intricate  subject. 
The  case  of  Rex  v.  Amery,  2  Term  R.  515,  has  exerted  much  influence  upon 
text  writers.     The  questions  were,  whether  a  judgment  of  seizure  quosque 
upon  a  default  was  final,  and,  if  so,  whether  the  king's  grant  of  pardon  and 
restitution  would  overreach  and  defeat  a  charter  granting  to  a  new  body  of 
men  the  same  liberties,  intermediate   the  seizure  and   the  pardon.     The 
king's  bench,  relying  upon  the  Year-Book,  discovered  that  it  did  not  sup- 
port'the  conclusion  drawn  from  it,  and  Chief  Baron  Eyre  says  that  "Lord 
Coke  had  adopted  the  doctrine  too  hastily."     The  discussions  upon  this 
case  show  how  much  the  knowledge  of  the  writ  of  quo  warranto,  as  it  had 
been  used  and  applied  under  the  Plantagenets  and  Tudors,  had  gone  from 
the  memories  of  courts  and  lawyers.     4  Term  R.  122;  Tan.  on  Quo  War. 
24.     In  Colchester  v.  Seaber,  3  Burr.  1866,  where  the  suit  was  upon  a  bondT 
and  the  defence  was,  that  certain  facts  had  occurred  to  dissolve  the  corpora- 
tion, and  that  the  creditor's  claim  was  extinguished  on  the  bond,  Lord 
Mansfield  said,   "Without  an  express  authority,  so  strong  as  not   to  be 
gotten  over,  we  ought  not  to  determine  so  much  against  reason  as  that 
parliament  should  be  obliged  to   interfere."     The   question  occurs  here, 
Could  parliament  interfere  ?     And  the  answer  would  be,  by  their  authoriz- 
ing a  suit  to  be  brought,  notwithstanding  the  dissolution.     These  are  all 
cases  of  municipal  corporations  where  the  corporators  had  no  rights  in  the 
property  of  the  corporation  in  severalty." 

1  Ante,  chap.  IV.  passim  ;  particularly,  sec.  41 ;  Cooley  Const.  Lim.  290, 
292;  Curran  v.  Arkansas,  15  How.  (IT.  S.)  312;  Bacon  v.  Robertson,  supra  ; 
2  Kent,  307,  note;  County  Commissioners  v.  Cox,  6  Ind.  403;  State  v. 
Trustees,  5  Ind.  77;  Coulter  v.  Roberson,  24  Miss.  278;  Gelpcke  v.  Du- 
buque, 1  Wall.  175,  1865;  Von  Hoffman  v.  Quincy,  4  Wall.  535;  Welch  v. 
Ste.  Genevieve,  1  Dillon  C.  C.  130;  Thompson  v.  Lee  County,  3  Wall.  327; 


Cn.  VII.]  DISSOLUTION.  239 

§  115.  The  name  of  an  incorporated  place  may  be 
changed,  its  boundaries  enlarged  or  diminished,  and  its 
mode  of  government  altered,  and  yet  the  corporation  not  be 
dissolved,  but  in  law  remain  the  same.1 

§  116.  Where  the  functions  of  an  old  corporation  are 
superseded,  or  where  the  corporation,  by  loss  of  all  its 
members,  or  of  an  integral  part,  is  dissolved  as  to  certain 
purposes,  it  may  be  revived  by  a  new  charter,  and  the 
rights  of  the  old  corporation  be  granted  over  to  the  Fame,  or 
a  new  set  of  corporators,  who,  in  such  case,  take  all  the 
rights,  and  are  subject  to  all  the  liabilities,  of  the  old  cor- 
poration, of  which  it  is  but  a  continuation.8 

Havemeyer  v.  Iowa  County,  3  Wall.  294;  Butz  v.  Muscatine,  8  Wall.  575; 
Lansing  v.  Treasurer,  &c.,  1  Dillon  C.  C.  522 ;  Soutter  v.  Madison,  15  Wis. 
30;  Smith  v.  Appleton,  19  Wis.  468;  Blake  v.  Railroad  Co.,  39  JST.  H.  435. 
The  dissolution  of  a  private  corporation  by  authorized  legislative  act,  or 
judicial  sentence,  does  not  impair  the  obligation  of  a  contract  any  more 
than  the  death  of  a  private  person  impairs  the  obligation  of  his  contract. 
This  doctrine  was  based  upou  two  grounds:  First,  the  obligation  survives, 
and  the  creditors  may  enforce  their  claims  against  any  property  belonging 
to  the  corporation  which  has  not  passed  into  the  hand  of  bona  fide  pur- 
chasers ;  second,  every  creditor  is  presumed  to  contract  with  reference  to  a 
possibility  of  a  dissolution  of  the  corporate  body.  Mumma  v.  Potomac 
Company  (holding  that  on  sci.  fa.  a  judgment  could  not  be  revived,  or  costs 
adjudged,  against  a  corporation  legislatively  annulled),  8  Pet.  (U.  S.)  281, 
1834.  In  the  case  of  the  town  of  Port  Gibson  v.  Moore,  13  Sm.  &  Marsh. 
157,  1849,  it  was  held,  indeed,  that  the  repeal  of  the  charter  of  an  indebted 
municipal  corporation  dissolved  it ;  that  such  dissolution  extinguished  debts 
to  and  from  the  corporation,  and  that  a  subsequent  act  re-incorporating  the 
place  did  not  make  it  liable  for  a  debt  existing  anterior  to  the  act  repealing 
its  charter.  The  court  overlooked  the  constitutional  provision  protecting 
contracts,  and  the  case  as  to  the  effect  of  a  dissolution  upon  the  rights  of 
creditors  seems  to  conflict  with  those  above  cited.  See  further,  as  to  ex- 
tinguishment of  debts  by  dissolution  of  corporation :  Mallory  v.  Mallett,  6 
Jones  Eq.  345 ;  Hopkins  v.  Whitesides,  1  Head  (Tenn.)  31 ;  Bank  v.  Lock- 
wood,  2  Barring.  (Del.)  8;  Robinson  v.  Lane,  19  Geo.  337;  Muscatine 
Turnverein  v.  Funck,  18  Iowa,  469;  Owen  v.  Smith,  31  Barb.  641;  Welch 
v.  Ste.  Genevieve,  1  Dillon  C.  C.  130  ;post,  chap.  XIV. 

1  Ante,  sec.  52,  and  cases  cited;  post,  chap.  VIII.  and  see  ante,  chap.  IV., 
where  the  extent  of  the  legislative  authority  over  municipal  corporations  is 
considered. 

1  Rex  v.  Passmore,  3  Term  R.  119,  247;  Regina  v.  Bewdley,  1  P.  Wms. 
307;  Colchester  i    Brooke,  7  Queen's  Bench,  383;  Colchester  v.  Seaber,  8 


240  MUNICIPAL     CORPORATIONS.  [Ch.  VII. 

Burr.  1866 ;  Grant  on  Corporations,  304  and  note ;  2  Kyd,  516.  Whether 
a  statute  or  legislative  charter  'will  operate  to  revive  or  continue  an  old,  or 
to  create  a  new  and  distinct  corporation,  depends  upon  the  intention  of  the 
legislature.  Ante,  chap.  V. ;  Bellows  v.  Bank,  &c,  2  Mason  C.  C.  43,  per 
Story,  J. ;  Angell  &  Ames,  sec.  780 ;  Grant  on  Corporations,  304,  305 ;  Hoff- 
man v.  Van  Nostrand,  42  Barb.  174 ;  Girard  v.  Philadelphia,  7  Wall.  1 ; 
Olney  •.  Harvey,  50  El.  453,  1869. 


Ch.  villi  corporate   name.  241 


CHAPTER  VIII. 

Corporate  Name,  Boundaries,  and  Seal. 

Corporate  Name. 

§  117.  Every  corporation  must  have  a  name.  This  is 
essential  to  distinguish  it  from  other  corporations.  In  Eng- 
land, before  the  Municipal  Corporations  Act  of  5  and  6 
Will.  IV.  chap.  LXXVI.  1835/  such  corporations  obtained 
their  name  by  having  it  expressed  in  their  charter  (whether 
royal  or  parliamentary),  or  by  usage  or  by  implication."  If 
a  particular  name  be  given  to  a  corporation  in  its  charter, 
the  corporation  can  no  more  change  it  at  its  pleasure  than  a 
man  can  at  pleasure  change  his  baptismal  name.  If  no 
name  be  given  to  a  corporation  by  its  charter  or  by  statute, 
it  may  obtain  one  by  implication.  Where  a  corporation 
exists  by  prescription,  it  may  have  more  than  one  name, 
but  the  names,  to  be  recognized  as  valid,  must  be  prescrip- 
tive, and  cannot  be  acquired  by  usage  within  the  time  of 
memory.  It  has  been  decided,  in  England,  that  a  corpora- 
tion may  have  one  name  by  prescription  and  another  by 
grant ;  but  it  is  said  that  the  same  corporation  cannot,  at  the 
same  time,  have  two  different  names  by  different  grants,  for 
the  name  in  the  last  grant  will  take  the  place  of  the  other.' 

§  118.  But  the  Municipal  Corporations  Act,  just  men- 
tioned, which  changed  the  corporate  constitution  of  the 
cities,  towns,  and  boroughs  of  England  and  Wales,  and  re- 

1  Ante,  sec.  16,  and  note. 

■  Glover,  52,  53;  Willc.  35;  Grant,  50;  ante,  sec.  21.  As  to  mage,  see, 
ante,  chap.  V.  sec.  56. 

•  Knight  v.  Wells,  1  Ld.  Raym.  80;  Physicians  v.  Salmon,  3  Salk.  102; 
Com.  Dig.  Franch.  F.  9 ;  per  Holt,  1  Salk.  191 ;  1  Str.  614 ;  Smith  v.  Rail- 
road Company,  30  Ala.  650,  1857.  See,  also,  All  Saints  Church  v.  Lovett, 
1  Hall  (N.  Y.)  191;  Manufacturing  Company  v.  Davis,  14  Johns.  238; 
Middlesex,  &c.  v.  Davis,  3  Md.  133;  Trustees  v.  Peaslee,  15  N.  H.  317; 
Society,  &c.  v.  Young,  2  N.  H.  310. 

16 


2-1.2  MUNICIPAL     CORPORATIONS.  [Ch.  VEIL 

duced  them  to  an  uniform  model,  made  this  provision  as 
the  name  of  the  corporation,  under  the  new  act:  "Said 
body,  or  reputed  body,  corporate  shall  take  and  bear  the 
name  of  the  mayor,  aldermen,  and  burgesses  of  such 
borough,  and  by  that  name  shall  have  perpetual  succession, 
and  shall  be  capable,  in  law,  by  the  council  hereinafter 
mentioned  of  such  borough,  to  do  and  suffer  all  acts  which 
now  lawfully  they  and  their  successors  may  do  and  suffer, 
by  any  name  or  title  of  incorporation,  so  far  as  not  altered 
or  annulled  by  the  provisions  of  this  act."1  It  is  settled  by 
the  decisions  under  this  act  that  the  true  or  proper  corporate 
name  for  boroughs  mentioned  in  it  is  "mayor,  aldermen, 

and  burgesses  of  the  borough  of  ,"  and  (under  the 

interpretation  clause,.sec.  142  of  the  act),  for  cities,  "mayor, 

aldermen,  and  citizens  of  the  city  of ."2     It  may  also 

be  here  observed  that  the  courts  have  determined  that, 
though  this  act  changed  the  name  and  made  new  and  im- 
portant alterations  in  the  constitution  of  the  corporations, 
yet  that  its  effect  was  not  in  any  case  to  create  a  new  corpo- 
ration, but  to  continue  the  old,  with  all  their  rights,  privi- 
leges, and  franchises,  except  so  far  as  inconsistent  with  the 
provisions  of  the  act.8  But  the  name  mentioned  in  the  act 
would  doubtless  govern,  and  by  that  they  would  have  to 
sue  and  be  sued. 

§  119.  Charters  granted  by  legislative  enactment,  in  this 
country,  almost  invariably  prescribe  the  name  of  the  corpo- 
rate body  thus:  "The  inhabitants  of   the  city  or  town  of 

are  hereby  constituted  a  body  politic  and  corporate, 

by  the  name  and   style  of   'city  of  ,'   or  'town  of 

.'  "4     So  the  general    municipal  incorporation  acts 

1  5  and  6  Will.  IV.  chap.  LXXVI.  sec.  6 ;  ante,  sec.  16,  and  note. 

3  Attorney  General  v.  Corporation  of  Worcester,  2  Phillips,  3 ;  Corpora- 
tion of  Rochester  v.  Lee,  15  Sim.  376;  Grant,  342;  Rawlinson,  13. 

8  Corporation  of  Ludlow  v.  Tyler,  7  Car.  &  P.  537;  Attorney  General  v. 
Wilson,  9  Sim.  30,  48 ;  Attorney  General  v.  Kerr,  2  Beav.  420,  429 ;  Attor- 
ney General  v.  Corporation  of  Leicester,  9  Beav.  46;  Doe,  &c.  v.  Norton,  11 
M.  &  W.  913,  928.  Parke,  B.,  there  said,  "though  the  name  and  style  of 
the  corporation,  and  the  mode  of  electing  members  were  changed,  the 
dentity  of  the  body  itself  was  not  affected."     Ante,  chap.  VII.  sec.  116. 

*  Ante,  sec.  19. 


Ch.  VIII.]  CORPORATE    NAME.  243 

usually  contain  a  provision  to  the  effect  that  "cities  and 
towns  organized  or  to  be  organized  thereunder,  are  declared 
to  be  bodies  politic  and  corporate,  under  the  name  and  style 

of  the  city  of ,  or  town  of ,  as  the  case  may  be," 

&c.  Where  such  an  act  authorized  any  existing  town  or 
city  to  adopt  its  provisions  in  place  of  its  special  charter, 
and  was  silent  as  to  the  corporate  name  alter  the  change 
was  made,  it  was  held  that  the  former  name  was  retained.1 

§  120.  Where  a  name  is  given  to  a  municipal  corpora- 
tion by  charter  or  statute,  this  cannot  be  changed  by  the 
act  of  the  corporation.2  But,  in  this  country,  general 
statutes  are  not  unfrequent,  authorizing  the  creation  of 
quasi  corporations,  without  making  it  necessary  to  desig- 
nate the  name  by  which  a  particular  district  shall  be  called  ; 
in  such  case  it  may  acquire  a  name  by  reputation,  and  sue 
and  be  sued  by  such  name.3 

§  121.  A  misnomer,  or  variation  from  the  precise  name 
of  the  corporation,  in  a  grant  or  obligation  by  or  to  it,  is 
not  material,  if  the  identity  of  the  corporation  is  unmistak- 
able, either  from  the  face  of  the  instrument  or  from  the 
averments  and  proof.4 

1  Johnson  v.  Indianapolis,  16  Ind.  227,  1861.  Corporate  name  of  the  city 
not  judicially  noticed.     II.     Ante,  sec.  20. 

3  Willcock,  34,  37,  38;  Regina  v.  Registrar  Joint  Stock  Company,  10  Q. 
B.  839.  See  Episcopal,  &c.  Society  v.  Episcopal  Church,  1  Pick.  372. 
Change  of  name  does  not  necessarily  involve  a  change  o"f  identity.  Girard 
v.  Philadelphia,  7  Wall.  1.     Ante,  chap.  VII.  sec.  116. 

*  School  District  v.  Blakeslee,  13  Conn.  227,  1839.  As  to  quasi  corpora- 
tions, ante,  sec.  10,  and  note ;  post,  chapter  on  Actions. 

4  Inhabitants  v.  String,  5  Halst.  (N.  J.)  323,  1829;  Kentucky  Seminary 
v.  Wallace,  15  B.  Mon.  35,  1854;  New  York  Conference  v.  Clarkson,  4  Halst. 
Ch.  541,  1851 ;  Angell  &  Ames,  sec.  185 ;  Pendleton  v.  Bank  of  Kentucky,  1 
Mon.  177;  Medway  Cotton  Manufacturing  Company  v.  Adams,  10  Mass.  360; 
People  v.  Love,  19  Cal.  676;  African  Society  v.  Varick,  13  Johns.  38;  Wool- 
rich  v.  Forrest,  1  Pa.  115;  Bower  v.  State  Bank,  5  Ark.  234;  Pierce**. 
Somerworth,  10  N.  H.  369;  Pittsburgh  v.  Craft,  1  Pitts.  (Pa.)  158,  1871; 
Douglas  v.  Branch  Bank,  &c,  19  Ala.  659. 

"The  general  rule  to  be  collected  from  the  cases  is,"  says  Chancellor 
Kent,  "that  a  variation  from  the  precise  name  of  the  corporation,  when  the 
true  name  is  necessarily  to  be  collected  from  the  instrument,  or  is  shown  by 


244  MUNICIPAL     CORPORATIONS.  [Ch.  VIII. 

§  122.  Where  the  intention  of  the  testator  is  clear,  a 
mistake  in  the  name  or  description  of  the  object  of  his 
bounty  will  not  make  the  devise  void.  This  general  prin- 
ciple is  applicable  to  all  corporations,  private  and  public. 
But  the  intention  must  be  so  clear  as  to  remove  all  reasonable 
doubt  as  to  the  corporation  meant.  This  rule  may  be 
illustrated  by  a  few  examples.  Thus,  a  devise  to  a  college 
by  its  common  name,  though  not  the  true  corporate  name, 
is  good.1  So,  where  the  devisees  were  called  by  their  popu- 
lar name,  "  The  South  Parish  in  Sutton"  their  legal  name 
being,  "  The  First  Parish  in  Sutton,"  the  devise  was  sus- 
tained.' So,  also,  the  "Mayor,  Jurats,  and  Commonalty  of 
the  Town  of  Rye,"  that  being  the  corporate  name,  were 
held  entitled  to  lands  by  a  devise  to  "  The  Right  Worship- 
ful the  Mayor,  Jurats,  and  Town  Council  of  the  Town  of 
Rye,"  although  there  was  no  town  council  in  the  town,  and 
although  the  court  admitted  the  proposition  of  counsel 
against  the  will,  that  if  the  "  intent  appears  to  give  to  a  part 
of  the  corporation,  although  that  intent  fails  of  effect,  the 
whole  corporation  cannot  take.'"  So,  also,  a  devise  to  the 
Mayor,  Chamberlain,  and  Governors,  is  valid  to  a  corpora- 
proper  averments,  will  not  invalidate  a  grant  by  or  to  a  corporation,  or  a 
contract  with  it,  and  the  modern  cases  show  an  increased  liberality  on  this 
subject."  2  Kent  Com.  292;  approved,  St.  Louis  Hospital  v.  Williams,  Ad- 
ministrator, 19  Mo.  609,  1854.  "We  adopt  the  more  reasonable  rule  laid 
down  by  Mr.  Kyd  (Corp.  vol.  I.  pp.  286,  288),  that  the  variance  must  be 
materially  different,  in  substance,  to  injure."   Per  Curiam,  People  v.  Runkle, 

9  Johns.  147,  157. 

"I  take  the  law  of  the  present  day  to  be,  that  a  departure  from  the 
strict  style  of  the  corporation  will  not  avoid  its  contracts,  if  it  substantially 
appear  that  the  particular  corporation  was  intended,  and  that  a  latent  am- 
biguity may,  under  proper  averments,  be  explained  by  parol  evidence,  in 
this  as  in  other  cases,  to  show  the  intention."  Per  Gibson,  J.,  in  President, 
&c.  v.  Myers,  6  Serg.  &  Rawle,  12;    S.  P.  Milford,  &c.  Company  v.  Brush, 

10  Ohio,  111. 

When  an  act  of  parliament  makes  a  grant  to  a  corporation,  it  takes  effect 
though  the  true  corporate  name  be  not  used,  provided  the  corporation  in- 
tended be  sufficiently  identified  or  described.  1  Kyd,  256 ;  Chancellor  of 
Oxford's  Case,  10  Co.  44,  57  b. 

1  Chancellor  of  Oxford's  Case,  10  Co.  87  b. 

•  First  Parish  in  Sutton  v.  Cole,  3  Pick.  232,  1825,  and  cases  there  cited. 

8  Attorney  General  v.  Mayor  of  Rye,  7  Taunton,  546 ;  2  Eng.  Com.  Law, 
818   1817. 


Cn.    nil.]  CORPORATE    NAME.  245 

tion  whose  true  name  is  Mayor,  Citizens,  and  Commonalty.1 
So,  a  legacy  may  be  given  to  a  corporation  either  by  its  cor- 
porate name  or  by  a  description  which  clearly  distinguishes 
and  identifies  the  legatee.3 

§  123.  Where  the  name  of  the  corporation  is  expressly 
defined  by  charter  or  statute,  it  is  usually  provided  in  terms 
that  by  such  name  it  may  sue  and  be  sued.  In  such  case 
the  true  corporate  name  should  be  used  both  in  suits  by  and 
against  the  corporation.  A  name  in  a  grant  or  obligation  to 
or  by  a  corporation  may  be  sufficient  to  enable  the  corpora- 
tion to  enjoy  or  to  make  it  liable,  which  would  not  be  sufli- 
cent  in  an  action  by  or  against  it.3  If  the  name  of  a  corpo^ 
ration  is  lawfully  changed,  not  the  identity  of  the  corpora- 
tion itself,  suit  should,  in  general,  unless  provision  be 
otherwise  made,  be  in  the  new  name.4    If  a  note,  bond,  or 

1  Owen,  35  (14  Eliz.).  "  The  devise  held  good  by  Dyer,  Weston,  and  Man- 
wood,  for  it  shall  be  taken  according  to  the  intent  of  the  devisor."  See, 
also,  Connden  v.  Clerke,  Hobart,  82;  Croydon  Hospital©.  Farley,  6  Taun- 
ton, 467;  1  English  Common  Law,  457,  1816,  where  Gibbs,  C.  J.,  justly 
condemns  the  absurd  nicety  of  many  of  the  decisions  from  the  reign  of  Ed- 
ward VI.  to  the  end  of  James  I.  on  the  subject  of  the  names  and  description 
of  corporate  bodies. 

2  New  York  Institute  v.  How,  10  N.  Y.  (6  Seld.)  84,  1854.  In  this  case 
the  plaintiff,  whose  corporate  name  was,  "  The  New  York  Institution  for 
the  Blind,"  was  decided  to  be  entitled  to  a  legacy  given  to  the  "  Trustees  of 
the  Institution  for  the  Maintenance  and  Instruction  of  the  Indigent  Blind," 
there  being  no  other  institution  in  the  city  of  New  York  for  the  blind.  See, 
also,  Vansant  v.  Roberts,  3  Md.  119 ;  Preachers1  Aid  Society,  45  Maine,  552 ; 
Chapin  v.  School  District,  &c,  35  N.  H.  445;  Minot  v.  Boston  Asylum,  7 
Met.  416.  Parol  evidence  may,  in  proper  cases,  be  received  to  identify  the 
corporation  intended.  Trustees  v.  Peaslee,  15  N.  H.  317;  Bodman  v. 
American  Tract  Society,  9  Allen,  447. 

3  Cambridge  University  v.  Crofts,  10  Mod.  208 ;  1  Kyd,  253 ;  Willc.  37 ; 
Brittain  v.  Newland,  2  Dev.  &  Bat.  (North  Car.)  363;  Insane  Asylum  v.  Hig- 
gins,  15  HI.  185;  Berks  Co.,  &c.  v.  Myers,  6  Serg.  &  Rawle  (Pa.)  12;  Clark 
v.  Potter  Co.,  1  Barr  (Pa.)  163;  Porter  v.  Blakely,  1  Root  (Conn.)  440; 
Kentucky  Seminary  v.  Wallace,  15  B.  Mon.  35;  Romeo  v.  Chapman,  2  Mich. 
179. 

4  Mayor,  &c.  of  Colchester,  3  Burr.  1866;  Regina  v.  Ipswich,  2  Ld. 
Raytn.  1232,  1238;  Angell  &  Ames,  sec.  644;  Glover,  63.  Mr.  Kyd  says: 
"  Where  a  corporation  becomes  liable  to  any  duty,  and  then  its  name  is 
changed,  the  writ  brought  against  it  should  be  in  the  new  name."  1  Corp. 
288.     On  a  merger,  by  statute,  of  a  town  into  a  city  corporation,  it  was  pro- 


246  MUNICIPAL     CORPORATIONS.  \Cn.    VIIL 

other  promise  be  made  to  a  corporation,  by  a  name  differing 
from  the  corporate  name,  the  corporation  may  sne  in  its  true 
name,  and  allege  that  it  is  the  party  to  whom  the  promise 
or  obligation  was  made.1 

Corporate  Boundaries. 

%  124.     Since  the  leading  object  of  an  American  muni- 
cipal corporation  is  to  invest  the  inhabitants  of  a  defined 
locality  or  place  with  a  corporate  existence  chiefly  for  the 
purposes  of  local  government,  it  is  obvious  that  the  geo- 
graphical limits  or  boundaries  of  the  corporation  ought  to 
he  defined  and  certain.     These  boundaries  are  usually  de 
scribed  in  the  charter  or  constituent  act,  or  a  method  is  pre- 
scribed therein,  by  which  they  may  be  ascertained  and  set 
tied.     Because  residence   within  the    corporation    confers 
rights  and  imposes  duties  upon  the  residents,  and  the  local 
jurisdiction  of  the  incorporated  place  is,  in  most  cases,  con 
fined  to  the  limits  of  the  corporation,  it  is  necessary  that 
these  limits  be  definitely  fixed."    They  are  established  by 

vided  that  all  of  the  books,  papers,  moneys,  and  effects  of  the  former 
should  vest  in  the  latter.  Held,  that  a  suit  on  a  bond  made  to  a  town 
before  the  transfer  could  not,  afterwards,  be  instituted  in  the  name  of  the 
town,  but  should  be  brought  in  the  corporate  name  of  the  city.  Fort 
Wayne  v.  Jackson,  7  Blackf.  (Ind.)  36,  1843. 

1  10  Co.  125  b;  1  Kyd,  287;  African  Society©.  Varick,  13  Johns.  38, 
1816;  Trustees  v.  Reneau,  2  Swan  (Tenn.),  94,  1852;  Fort  Wayne  v.  Jack- 
eon,  7  Blackf.  (Ind.)  36,  1843.  An  allegation  that  the  defendants  acknowl- 
edged themselves  to  be  bound  unto  the  plaintiffs,  by  the  description,  &c,  is 
equivalent  to  such  an  averment.     13  Johns.  38,  supra. 

2  Cutting  v.  Stone,  7  Vt.  471;  Gray  v.  Sheldon,  8  lb.  402;  Pierce  «.  Car- 
penter, 10  lb.  480.  As  to  boundaries  generally,  and  construction  of  acts 
relating  thereto,  see  Hamilton  v.  McNeil,  13  Gratt.  (Va.)  389;  Raab  v.  Mary- 
land, 7  Md.  483;  Green  v.    Cheek,  5  Ind.   105;  People  v.   Carpenter,    24 

'  N.  Y.  86;  Elmendorf  v.  Mayor,  &c,  25  Wend.  693.     Post,  sees.  433,  497. 

The  following  cases  relate  to  questions  which  have  arisen  with  respect 
to  places  bounded  on  rivers.  An  act  extending  the  bounds  of  a  town  over 
the  adjacent  navigable  waters  does  not  thereby  grant  to  the  town  the  land 
covered  by  the  water,  and  consequently  confers  no  right  to  make  rules  to 
regulate  the  use  of  such  land,  although  such  an  act  will  bring  the  territory 
within  the  limits  of  the  town  for  the  purpose  of  civil  and  criminal  jurisdic- 
tion. Palmer  v.  Hicks,  6  Johns.  133,  1810. 

In  New  Hampshire,  towns  bounded  by  or  on  rivers  not  navigable,  or  by 


Ch.  VIII.]  CORPORATE     BOUNDARIES.  247 

legislative  authority.  The  power  to  incorporate  a  place 
necessarily  includes  the  power  to  fix  and  change  its  boun- 
daries. 

§  125.  There  cannot  be,  at  the  same  time,  within  the 
same  territory,  two  distinct  municipal  corporations,  exer- 
cising the  same  powers,  jurisdictions,  and  privileges.1 

lines  up  and  down  the  river,  extend  to  the  centre  of  the  river,  and  this  prin- 
ciple is  held  to  apply  to  the  great  streams,  the  Connecticut  and  the  Merri- 
mack. State  v.  Canterbury,  8  Fost.  (N.  H.)  195,  1854;  State  v.  Gilmanton, 
14  N.  H.  467.     See,  also,  Cold  Springs,  &c.  v.  Tolland,  9  Cush.  492. 

In  Connecticut,  towns  bounded  on  rivers,  in  some  instances,  take  the 
land  on  each  side  of  the  river,  in  which  case  the  whole  river  is  within  the 
jurisdiction  of  the  town.  In  other  instances,  where  towns  are  bounded  on 
rivers,  the  jurisdiction  thereof  is  construed,  without  any  express  provision 
to  that  effect,  and  in  virtue  of  ancient  usage  to  that  effect,  to  extend  to 
the  centre  of  the  stream.  Opposite  towns  have  each  political  and  civil 
jurisdiction  to  the  centre,  though  the  charter  limits  extend  only  to  the 
stream,  or  margin  or  channel  thereof.  Pratt  v.  State  (assnlt  on  officer  on 
the  river  Connecticut),  5  Conn.  388,  1824;  Hayden  v.  Noyes  (oyster  fishery 
on  the  Connecticut  river),  lb.  391,  395.  Hosmer,  C.  J.  (lb.  395),  remarks: 
"Every  part  of  the  Connecticut  river,  so  far  as  it  relates  to  jurisdiction,  is 
within  some  town  in  the  state ;  or  these  waters  would  be  a  sanctuary  for 
debtors  or  criminals.     Such  has  been  the  invariable  usage." 

The  jurisdiction  of  Brooklyn,  for  police  purposes,  extends  to  low  water 
line,  whether  formed  naturally  or  artificially.  Furman  Street,  17  "Wend. 
649,  €61.  See  Udall  v.  Trustees,  19  Johns.  175,  lb.  179,  as  to  boundary  of 
New  Tori  city.  By  statute,  the  bounds  of  Albany  extend  to  the  middle  of 
the  Hudson  river.  9  Wend.  602.  Eastern  boundary  line  of  St.  Louis  was 
defined  by  the  charter  to  be  the  Mississipi  river,  and  it  was  held  to  extend 
to  the  middle  of  the  stream,  and  not  simply  to  the  bank.  Jones  v.  Soulard, 
24  How.  41,  1860. 

Where  the  riparian  proprietor  only  owns  to  high  water  mark,  and  all  be- 
low belongs  to  the  state,  a  city  cannot  tax  lots  covered  by  water  beyond 
high  water  mark.    State  v.  Jersey  City,  1  Dutch.  (N.  J.)  525;  lb.  530. 

Statute  duty  as  to  bridges  of  adjacent  towns  bounding  on  a  river  running 
between  them.  Brookline  v.  Westminster,  4  Vt.  224 ;  Granby  v.  Thurston, 
23  Conn.  416. 

The  same  construction  that  is  given  to  grants  is  given  to  statutes  which 
prescribe  the  boundary  of  incorporated  territories.  Thus,  where  a  stream 
not  navigable  is  made  the  boundary,  the  centre  of  the  stream  is  the  true 
line.  Cold  Springs,  &c.  v.  Tolland,  9  Cush.  492,  1852  (action  for  defective 
bridge) ;  Inhabitants  of  Ipwick,  13  Pick.  431. 

1  Willc.  on  Corp.  27 ;  Patterson  v.  Society,  &c,  4  Zabriskie  (N.  J.)  385, 
399,  per  Green,  C.  J.,  1854 ;  Rex  v.  Passmore,  3  Term  R.  243 ;  Rex  v.  Amery, 
2  Bro.  P.  C.  336;  Grant  on  Corp.  18.     Where  the  boundary  line  of  a  cor 


248  MUNICIPAL     CORPORATIONS.  [Cn.  VIIL 

§  126.  Not  only  may  the  legislature  originally  fix  the 
limits  of  the  corporation,  but  it  may,  unless  specially  re- 
strained in  the  constitution,  subsequently  annex,  or  au- 
thorize the  annexation  of,  contiguous  or  other  territory,  and 
this  without  the  consent,  and  even  against  the  remonstrance, 
of  the  majority  of  the  persons  residing  in  the  corporation  or 
on  the  annexed  territory.  And  it  is  no  constitutional  ob- 
jection to  the  exercise  of  this  power  of  compulsory  annexa- 
tion, that  the  property  thus  brought  within  the  corporate 
limits  will  be  subject  to  taxation  to  discharge  a  pre-existing 
municipal  indebtedness,  since  this  is  a  matter  which,  in  the 
absence  of  special  constitutional  restriction,  belongs  wholly 
to  the  legislature  to  determine.1 

poration  was  vague  and  indefinite,  the  practical  interpretation  which  had 
been  given  to  the  statute  by  the  citizens  of  the  disputed  distriet  in  exer- 
cising municipal  privileges,  such  as  voting,  &c.  was  adopted  by  the  court. 
Milne  v.  Mayor,  &c,  13  La.  69,  1838.  See,  also,  Hamilton  v.  McNeil,  13 
Gratt.  (Va.)  389,  1856.  Post,  sec.  353,  n.  Boundaries  may  be  defined  by 
long  use,  confirmed  by  a  legislative  recognition.  People  v.  Farnham,  35  111. 
562.  If  a  dwelling  house  is  divided  by  the  boundary  line  between  two 
towns,  that  portion  of  the  house  which  the  occupant  mainly  and  substan- 
tially makes  his  home  (as  by  sleeping,  eating,  &c.)  fixes  his  residence,  and  he 
cannot  elect  to  reside  and  be  taxed  in  the  other  town.  Cheenery  v.  Wal- 
tham,  9  Cush.  327. 

1  Blanchard  v.  Bissell,  11  Ohio  St.  96,  1860,  defining  contiguity  and  con- 
struing statute  authorizing  county  commissioners  to  annex;  following  and 
approving  Powers  v.  Wood  County,  8  Ohio  St.  285,  1858.  See,  also,  Lay- 
ton  v.  New  Orleans,  12  La.  An.  515,  1857;  Arnoult  v.  New  Orleans,  11  Io. 
54 ;  Cheany  v.  Hooser,  9  B.  Mon.  330 ;  Gorham  v.  Springfield,  21  Maine, 
59 ;  Morford  v.  Unger,  8  Iowa,  82,  1859 ;  St.  Louis  v.  Russell,  9  Mo.  503, 
1845;  St.  Louis  v.  Allen,  13  Mo.  400,  1850;  Smith  v.  McCarthy,  56  Pa.  St. 
359 ;  Chandler  v.  Boston,  Supreme  Court,  Mass.,  1873,  not  yet  reported ; 
Railroad  Company  v.  Spearman,  12  Iowa,  112;  Wade  v.  Richmond,  18 
Gratt.  (Va.)  583,  1868 ;  Norris  v.  Mayor,  &c,  1  Swan  (Tenn.)  164 ;  Elston 
v.  Crawfordsville,  20  Ind.  272 ;  Edmunds  v.  Gookins,  lb.  477 ;  Girard  v. 
Philadelphia,  7  Wall.  1,  1868;  Opinion  of  Justices,  6  Cush.  580 ;  Warren 
v.  Charlestown,  2  Gray,  104.  "It  would  require,"  says  Swan,  J.,  in  Powers 
v.  Wood  County,  8  Ohio  St.  285,  290,  "a  very  artificial  and  unsound  mode 
of  reasoning  to  hold  that  territory  could  not  be  annexed  to  a  town  which 
owed  debts,  until  the  owners  of  such  territory  were  paid  a  compensation  in 
money  for  a  proportional  part  of  such  debts,  on  the  ground  that  the  prop- 
erty annexed  was  condemned  for  public  use.  It  is  not  to  be  presumed  that 
a  municipal  corporation  has  contracted  a  debt  without  being  correspond- 
ingly benefited."     Ante,  chap.  IV. 

It  is  held  in  Pennsylvania  that,  under  the  terms  of  the  act  of  the  legis- 


Oh.  VIII.]  CORPORATE    BOUNDARIES.  349 

§  127.  In  connection  with  the  power  of  the  legislature 
to  create  corporations  and  determine  their  territorial  extent, 
reference  may  be  made  to  the  division  of  towns  or  public 
corporations  by  legislative  act  or  authority.  There  is  no 
restriction  on  the  general  power,  unless  it  be  found  in  the 
constitution  of  the  state.1  In  case  of  division,  the  legislature 
may,  as  we  have  already  seen,  apportion  the  burden  be- 
tween the  two,  and  determine  the  proportion  to  be  borne  by 
each."  In  Connecticut,  "  the  legislature,"  says  the  Supreme 
Court,  "  have  immemorially  exercised  the  power  of  dividing 
towns  at  its  pleasure,  and,  upon  such  division,  apportioning 

lature  authorizing  the  incorporation  of  villages,  the  boundaries  cannot  be 
extended  so  as  to  include  a  large  body  of  farm  lands;  but  the  district  to  be 
incorporated  should  be  restricted  by  the  courts  in  which  the  proceeding  is 
had,  so  as  to  include  no  more  thau  the  village  itself  and  its  proper  territory. 
Borough  of  Little  Meadows,  35  Pa.  St.  335,  1860;  Devore's  Appeal,  56  Pa. 
St.  163;  Blooming  Valley,  lb.  66;  and  see  chapter  on  Taxation,  post,  sees. 
633,  634. 

In  Indiana,  under  act  of  June  18,  1852,  lots  adjoining  a  city,  which  are 
laid  off,  platted,  and  recorded,  may  be  included  within  the  city  limits  by 
resolution  of  the  common  council.  Contiguous  territory  not  thus  laid  off, 
&c,  can  only  be  annexed  by  petition  to  the  board  of  county  commissioners. 
Jefferson ville  v.  Weems,  5  Ind.  (Porter)  547,  1854. 

Effect  of  extension  of  corporate  limits  on  homestead  right,  where  different 
provisions  are  made  for  country  and  town  homesteads.  Taylors.  Boulware, 
17  Texas,  74  ;  Finley  v.  Dietrick,  12  Iowa,  516. 

Ordinances  or  contracts  designed  to  operate  throughout  the  city  at  large, 
extend  to  and  operate  within  subsequent  enlarged  municipal  limits.  St. 
Louis  Gas  Co.  v.  St.  Louis,  46  Mo.  121,  1870. 

Recording  town  plats.  .Bemis  v.  Becker,  1  Kansas.  226 ;  Mason  v.  Pitt, 
21  Mo.  391 ;  Strong  v.  Darling,  9  Ohio,  201.     Post,  sec.  491. 

As  to  taxation,  for  general  municipal  purposes,  of  rural  property  within 
corporate  limits,  and  the  restrictions  on  the  right,  see  chapter  on  Taxation, 
post,  sees.  633,  634. 

1  Ante,  chap.  IV.  sees.  30,  36. 

2  Ante,  sec.  36  et  seq. ;  Londonderry  v.  Deny,  8  N.  H.  320,  1836  ;  Bristol 
v.  New  Chester,  3  N.  H.  532  ;  Sill  v.  Corning,  15  N.  Y.  297 ;  People  v. 
Draper,  lb.  532  ;  Smith  v.  Adrian,  1  Mich.  495  ;  "Waring  v.  Mobile,  24  Ala. 
701;  Mayor  v.  State,  15  Md.  376;  Love  v.  Schenck,  12  Ire.  Law,  304,  1851 ; 
Love  v.  Ramsour,  lb.  328,1855;  Olney  v.  Harvey,  50  111.  453;  Dunsmore's 
Appeal,  52  Pa.  St.  374 ;  County  Court  v.  County  Court,  3  Bush  (Ky.)  93. 
And  see,  ante,  chap.  IV.  for  a  general  view  of  the  extent  of  the  legislative 
authority  over  public  and  municipal  corporations  and  their  rights,  liabili- 
ties, property,  and  contracts;  and  chap.  VII.  as  to  the  dissolution  of  muni 
tipal  corporations  and  its  effect  upon  their  creditors  and  property. 


250  MUNICIPAL     CORPORATIONS.  [Ch.  VTH. 

the  common  property  and  common  burdens  in  such  manner 
as  to  it  shall  seem  reasonable  and  equitable." l  Accordingly, 
it  may  impose  on  one  town,  upon  such  division,  the  entire 
expense  of  erecting  and  maintaining  a  bridge  across  a  river 
which  is  the  dividing  line  between  the  two  towns." 

§  128.  On  the  division  of  a  town  or  public  corporation 
possessing  corporate  property,  into  two  separate  towns  or 
communities,  each,  in  the  absence  of  a  different  provision 
by  the  legislature,  was  considered  by  the  Supreme  Court  of 
New  York  to  be  entitled  to  hold  in  severalty  the  public  prop- 
erly which  fell  within  its  limits.8    In  Connecticut,  it  is  de- 

1  Granby  v.  Thurston,  23  Conn.  416,  419,  per  Waite,  C.  J. ;  Willimantic 
Society  v.  School  Society  (division  of  school  societies  and  funds),  14  Conn. 
457;  Hartford  Bridge  Company  v.  East  Hartford  (ferry  franchise),  16  Conn. 
149;  affirmed,  10  How.  (TJ.  S.)  511,  541.  Legislature  cannot  control  an  ed- 
ucational fund  raised  by  individual  bounty  and  not  by  taxation.  Plymouth 
«.  Jackson,  15  Pa.  St.  44.  See,  also,  Montpelier  v.  East  Montpelier,  27  Vt. 
704;  29  lb.  12.     Ante,  sees.  37,  47,  52,  115. 

3  Granby  v.  Thurston,  supra.     Ante,  sec.  43. 

The  tenacity  with  which  the  people  of  New  England  cling  to  the  popular 
or  town  form  of  government  has  been  before  noticed  (ante,  sees.  11,  12) ;  and 
the  Constitution  of  Massachusetts  in  the  second  amendment  accepted  in 
1821  contains  the  provision  that  the  legislature  "  shall  have  full  power  and 
authority  to  erect  and  constitute  municipal  or  city  governments  in  any  cor- 
porate town  or  towns  in  this  commonwealth,  ....  provided,  that  no 
such  government  shall  be  erected  or  constituted  in  any  town  not  contain- 
ing 12,000  inhabitants,  nor  unless  it  be  with  the  consent  and  on  the  appli- 
cation of  a  majority  of  the  inhabitants  of  such  town  present  and  voting 
thereon  at  a  meeting  duly  warned  and  holden  for  that  purpose."  On 
May  16,  1863,  the  legislature,  without  any  application  by  a  majority  of 
the  inhabitants  of  the  town  of  Brookline,  which  contained  a  population 
of  about  6,500,  annexed  it  to  the  city  of  Boston,  the  act  to  take  effect 
if  accepted  by  a  majority  of  voters  voting  at  meetings  to  be  held  in 
October,  1873.  In  the  case  of  Chandler  v.  Boston  and  Brookline,  now 
(June,  1873)  pending  before  the  Supreme  Judicial  Court  of  Massachusetts, 
the  question  is  presented  whether  an  entire  town  with  less  than  12,000 
inhabitants  can  be  annexed  to  a  city,  and  also  whether  a  previous  applica- 
tion of  a  majority  of  the  inhabitants  of  the  town  is  not  essential  to  the 
erection  or  constitution  of  a  city  government  therein  or  over  the  inhabitants 
thereof.  See  opinion  of  Justices,  6  Cush.  580 ;  Warren  v.  Charlestown,  2 
Gray,  104,  as  to  general  power  of  the  legislature  to  change  the  boundaries 
af  towns  and  cities. 

•  North  Hempstead  v.  Hempstead,  2  Wend.  109,  1828.    "Suppose,"  says 
Savage,  C.  J.,  delivering  the  opinion  of  the  court  in  this  case,  "  the  state  to 


Ch.  VIII.]  CORPORATE     BOUNDARIES.  251 

clared  to  be  "  well  settled  that  when  part  of  the  inhabitants 
and  territory  of  an  older  town  are  erected  into  a  new  cor- 
poration, the  old  town  retains  all  of  the  property,  rights, 
and  privileges  formerly  belonging  to  it,  and  is  subject  to  alJ 
its  former  duties  and  liabilities,  at  least  as  it  regards  prop- 
erty which  has  no  fixed  location  in  the  new  town,  as  lands, 
buildings,  &c.  ;"  accordingly,  "  upon  the  division  of  Hart- 
ford, no  part  of  the  ferry  franchise  would  pass  to  the  new 
town  of  East  Hartford,  except  by  virtue  of  a  legal  provision 
to  that  effect.'"  So,  in  Massachusetts,  it  has  been  held  that 
if  a  new  corporation  is  created  out  of  the  territory  of  an 
old  corporation,  or  if  part  of  its  territory  or  inhabitants 
is  annexed  to  another  corporation,  unless  some  provision 
is  made  in  the  act  respecting  the  property  and  existing  lia- 
bilities of  the  old  corporation,  the  latter  will  be  entitled  to  all 
the  property,  and  be  solely  answerable  for  all  the  liabilities. 

§  129.     But  upon  the  division  of  the  old  corporation, 
and  the  creation  of  a  new  corporation  out  of  part  of  its  in- 

be  divided  into  two  states,  without  some  special  agreement,  each  would 
own  the  public  property  within  its  limits.  So  of  counties — the  public 
buildings  "remain  the  property  of  the  old  county;  yet  public  buildings  are 
as  much  public  property  as  public  lands.  So  as  to  the  plains,  meadows,  and 
marshes  which  are  the  subject  of  this  suit.  A  bill  filed  by  a  new  county 
for  the  partition  of  the  goal  and  court-house,  which  had  been  common 
property,  would  be  the  same  in  principle  as  the  bill  in  this  suit.  Would 
not  such  a  suit  be  considered  preposterous?  Suppose  a  religious  corpora- 
tion, possessed  of  a  church  and  parsonage;  it  becomes  expedient  to  erect 
part  into  a  new  corporation;  would  not  the  old  corporation  retain  the 
property,  unless  an  agreement  was  made  as  to  the  partition  of  it  ?"  2  Wend. 
109,  135.  Incorporation  of  a  part  of  a  town  into  a  city,  held  not  to  divest 
the  title  of  the  town  to  a  tract  of  land  owned  by  it  in  fee  simple,  "in  trust, 
for  the  use  of  the  town,  forever."     Milwaukee  v.  Milwaukee,  12  Wis.  93. 

1  Per  Church,  J.,  in  Hartford  Bridget'.  East  Hartford,  16  Conn.  149,  171, 
1844;  affirmed  by  Supreme  Court  of  the  United  States,  10  How.  (U.  S.)  511, 
641.  Approving  Windham  v.  Portland,  8  Mass.  384 ;  Hampshire  v.  Franklin, 
16  Mass.  76;  North  Hempstead  v  Hempstead,  2  Wend.  109.    Ante,  sec.  9. 

■  Windham  v.  Portland,  4  Mass.  384,  1808;  Richards  v.  Daggett,  4  lb. 
539 ;  Hampshire  v.  Franklin,  16  Mass.  76,  1819 ;  Richland  County  v.  Lawrence, 
12  111.  1,  1850;  Blackstone  v.  Taft,  4  Gray,  250,  1855;  North  Yarmouth  «. 
Skillings,  45  Maine,  133,  142,  1858;  Cobb  v.  Kingman,  15  Mass.  197; 
Minot  v.  Curtis,  7  Mass.  441,  445.  Opinion  of  Supreme  Judges,  6  Cush. 
575;  lb.  578. 


252  MUNICIPAL     CORPORATIONS.  [Ch.  VHL 

habitants  and  territory,  or  upon  the  annexation  of  part  to 
another  corporation,  the  legislature  may  provide  for  an 
equitable  appropriation  or  division  of  the  property,  and 
impose  upon  the  new  corporation,  or  upon  the  people  and 
territory  thus  disannexed,  the  obligation  to  pay  an  equitable 
proportion  of  the  corporate  debts.1    The  charters  and  con- 

1  Gorham  v.  Springfield,  21  Maine  61 ;  North  Yarmouth  v.  Skillings,  45 
Maine,  133,  1858;  Brewster  v.  Harwich,  4  Mass  278;  lb.  315;  lb.  384; 
Harrison  v.  Bridgton,  16  Mass.  16;  lb.  76,  1819;  Lakin  v.  Ames,  10  Cush. 
198,  1852.  See  School  District  v.  Richardson,  23  Pick.  62,  1839,  as  to  the 
effect  in  Massachusetts  upon  the  title  to  property  of  the  abolition  of  old 
school  districts  and  the  formation  of  new  ones ;  followed  by  School  District 
d.  Tapley,  1  Allen,  49 ;  but  a  dictum  therein  questioned  by  Hoar,  J.  Sim- 
mons v.  Nahant,  3  Allen,  316,  as  to  necessity  of  a  deed  of  conveyance  for 
real  estate.  Tileson  v.  Newman,  23  Vt.  421 ;  Richards  v.  Daggett,  4  Mass. 
534 ;  Waldron  v.  Lee,  5  Pick.  323.  In  Pennsylvania  it  was  held  that,  on  a 
division  of  a  township,  each  fraction  remains  liable  for  the  whole  debt  due 
by  the  old  township ;  if  one  pays  the  whole  amount,  it  lays  the  foundation 
for  contribution.  Plunkett  Township  v.  Crawford,  27  Pa.  St.  107,  1856. 
See  New  London  v.  Montville,  1  Root  (Conn.)  184.  As  to  right  to  collect 
taxes  on  such  division,  see  Barnett  Township  v.  Jefferson  County,  9  Watts, 
166  ;  Devor  v.  McClintock,  9  Watts  &  S.  80. 

As  to  support  of  poor  in  case  of  division:  North  Whitehall  v.  South 
Whitehall,  3  Serg.  &  Rawle,  117;  Overseers,  &c.  v.  Overseers,  &c,  2  lb. 
422;  Stillwater  v.  Green,  4  Halst.  (N.  J.)  59. 

Where  there  has  been  an  insufficient  legal  division  and  organization  of  a 
new  district,  this  may  be  afterwards  ratified,  and  made  binding.  Sawyer  v. 
Williams,  25  Vt.  311;  Pierce  o.  Carpenter,  10  Vt.  480;  Alden  v.  Rounsville, 
7  Met.  219. 

The  mode  of  proceeding,  under  the  statute  of  New  York,  in  the  division 
of  old  and  the  erection  of  new  towns,  the  directory  nature  of  the  statute  as 
to  mode  of  proceeding,  and  the  presumption  in  favor  of  the  regularity  of 
the  proceedings,  are  clearly  set  forth  in  the  case  of  the  People  v.  Carpenter, 
24  N.  Y.  86. 

As  illustrating  the  directory  nature  of  such  statutes,  see  Elmendorf  v. 
Mayor,  25  Wend.  693;  Striker  v.  Kelly,  7  Hill  (N.  Y.)  9.  But  an  agree- 
ment in  such  division,  transcending  the  powers  of  the  officers  who  make  it, 
is  not  binding  on  the  town.  Overseers  v.  Same,  18  Johns.  382.  Effect  of 
erection  of  a  new  out  of  a  portion  of  an  old  county  on  the  terms  of  officers 
who  respectively  reside  in  the  new  and  old  portions,  see  People  v.  Morrell, 
21  Wend.  563,  1839,  and  authorities  cited  by  Cowen,  J.,  p.  580.  County 
commissioners  must,  by  law,  reside  in  the  county,  and  on  the  erection  of  a 
new  county  in  which  their  residences  is  included,  they  become  residents  of 
the  new  county  and  non-residents  of  the  old  county,  and  cannot  legally  act 
for  it,  unless  they  remove  within  it ;  though  if  they  continue  to  act  without 
such  removal  their  acts  are  valid,  being  officers  de  facto.  State  v.  Harts- 
horn, 17  Ohio,  135;  State  v.  Jacobs,  lb.  143. 


Ch.  VI.  ]  CORPORATE    SEAL.  253 

stituent  acts  of  public  and  municipal  corporations  are  not, 
as  we  have  before  seen,  contracts,  and  they  may  be  changed 
at  the  pleasure  of  the  legislature,  subject  only  to  the  re- 
straints of  special  constitutional  provisions,  if  any  there  be. 
And  it  is  an  ordinary  exercise  of  the  legislative  dominion 
over  such  corporations  to  provide  for  their  enlargement  or 
division  ;  and,  incidental  to  this,  to  apportion  their  property 
and  to  direct  the  manner  in  which  their  debts  or  liabilities 
shall  be  met,  and  by  whom.  The  opinion  has  been  ex- 
pressed that  the  partition  of  the  property  must  be  made  at 
the  time  of  the  division  of,  or  change  in,  the  corporation, 
since  otherwise  the  old  corporation  becomes,  under  the  rule 
just  before  stated,  the  sole  owner  of  the  property,  and  hence 
cannot  be  deprived  of  it  by  a  subsequent  act  of  the  legisla- 
ture.1 But,  in  the  absence  of  special  constitutional  limita- 
tions upon  the  legislature,  this  view  cannot,  perhaps,  be 
maintained,  as  it  is  inconsistent  with  the  necessary  supre- 
macy of  the  legislature  over  all  its  corporate  and  unincor- 
porate  bodies,  divisions  and  parts,  and  with  several  well- 
considered  adjudications.8 

Corporate  Seal. 

§  130.  The  charters  of  municipal  corporations  usually 
contain  a  clause  authorizing  them  to  have  and  use  a  com- 
mon seal,  and  to  alter  the  same  at  pleasure.  Without  an 
express  grant  it  is,  however,  incident  to  every  corporation 
to  adopt  and  use  a  corporate  seal.  The  essential  importance 
which  the  common  law  anciently  attached  to  seals,  and  the 

4  Hampshire  v.  Franklin,  16  Mass.  76  ;  Windham  v.  Portland,  4  lb.  390 ; 
Bowdoinham  v.  Richmond,  6  Greenl.  (Maine)  112,  holding  that  subsequent 
legislation  could  not  change  the  apportionment  of  the  debts  between  an 
old  town  and  one  created  from  it,  since  such  an  apportionment  was  in  the 
nature  of  a  contract.     But  see,  ante,  chap.  IV.  sec.  37,  44. 

a  Layton  v.  New  Orleans,  12  La.  An.  515,  1857,  cited,  ante,  sec.  36; 
Dunsmore's  Appeal,  52  Pa.  St.  374.  In  this  last  case,  one  borough  was 
divided  into  four,  and  the  legislature  was  held  to  have  the  power  afterwards 
to  provide  for  an  equitable  adjustment  of  the  indebtedness  among  them  all, 
by  commissioners  to  be  appointed  by  a  designated  court,  and  from  whose 
determination  no  appeal  was  allowed.  As  to  extent  of  legislative  control 
over  public  and  municipal  corporations  and  their  rights,  liabilities,  prop- 
erty, and  contracts,  see,  ante,  chapter  IV.  and  cases  there  cited ;  Cooley 
Const.  Lim.  193,  231,  232;  post,  chapter  on  Taxation. 


254  MUNICIPAL     CORPORATIONS.  [Ch.  VIII. 

modern  relaxation  of  the  rale,  are  well  known.  Respecting 
seals,  the  same  general  principles  apply  to  private  and  to 
municipal  corporations.  Thus,  a  corporation  of  the  latter 
class  would  doubtless  be  bound  equally  with  a  private 
corporation  by  any  seal  which  has  been  authoritatively 
affixed  to  an  instrument  requiring  it,  though  it  be  not  the 
seal  regularly  adopted.1  On  the  other  hand,  it  would  not  be 
bound  by  the  affixing  of  either  the  regular  or  temporary  seal 
by  a  person  not  legally  and  duly  authorized.8  So,  under 
the  modern  doctrine,  a  corporation  can  do  an  act  in  pais 
by  an  attorney  in  fact,  and  such  attorney  need  not  neces- 
sarily be  appointed  under  seal.3 

§  131.  The  seal  of  a  private  corporation  attached  to  an 
instrument  does  not  prove  its  own  authenticity ;  but  it 
should  be  shown  by  evidence  aliunde  to  be  really  the  seal 
of  the  corporation.*  The  same  doctrine  is,  propably,  ap- 
plicable to  the  seal  of  a  municipal  corporation,  except 
where  changed  by  charter  or  statute,  although  it  seems  that 
it  is  usual  in  England  to  allow  deeds  and  other  instruments 
relating  to  real  estate  go  to  the  jury  when  authenticated  by 
the  corporate  seals  of  London,  Edinburgh,  or  Dublin — these 
being  corporations  of  great  antiquity,  or  recognized  by  the 
legislature. 6    The  corporate  seal  attached  to  an  instrument 

1  Bank,  &c.  v.  Railroad  Company,  30  Vt.  159,  1858,  per  Bedfield,  C.  J. ; 
Tenney  v.  Lumber  Company,  43  N.  H.  343;  Mill  Dam  Foundry  v.  Hovey, 
21  Pick.  417 ;  Porter  v.  Railroad  Company,  37  Maine,  349 ;  Angell  &  Ames 
Corp.  sec.  217;  Phillips  v.  Coffee,  17  111.  154;  Stebbins  v.  Merritt,  10  Cush^ 
27  ;  City  Council  v.  Moorehead,  2  Rich.  Law,  430 ;  Grant  on  Corp.  59,  and 
cases,  and  note  author's  opinion  and  his  doubt  as  to  the  existence  of  any 
common  law  right  to  change  the  common  seal.  An  impression  of  a  corporate 
seal  stamped  upon  and  into  the  substance  of  the  paper  containing  the  instru- 
ment is  sufficient,  without  wafer  or  wax.    Hendee  v.  Pinkerton,  14  Allen,  381 . 

a  Koehler  v.  Iron  Company,  2  Black,  715,  1862 ;  Bank  of  Inland  v.  Evans, 
33  Eng.  Law  and  Eq.  23. 

8  Curry  v.  Bank,  8  Porter  (Ala.)  361,  1839 ;  Lathrop  v.  Bank,  8  Dana, 
114;  Abby  v.  Billups,  35  Miss.  618. 

4  Den  v.  Vreelandt,  2  Halst.  (N.  J.)  352,  1800;  Gilbert  Ev.  19;  Jackson 
v.  Pratt,  10  Johns.  381  ;  Moises  v.  Thompson,  9  Term  R.  303;  City  Council 
p.  Moorehead,  3  Rich.  (South  Car.)  Law,  430;  Poster  v.  Shaw,  7  Serg.  & 
Rawle,  163;  lb.  318;  Mann  v.  Pentz,  2  Sandf.  Ch.  257. 

6  Per  Kimey,  C.  J.,  Den  v.  Vreelandt,  2  Halst.  (N.  J.)  853. 


Cn.  VIII.]  CORPORATE     SEAL.  2S5 

attested  by  the  signatures  of  the  proper  officers,  is  prima 
facie  evidence  that  it  was  lawfull}'  placed  there,  and  that 
the  instrument  is  the  act  of  the  corporation.1 

§  132.  The  modern  rule  is  that  corporations  may  be 
bound  by  contracts  not  under  seal,  and  the  circumstances 
under  which  they  will  be  bound  have  been  stated  by  Story, 
J.,  in  terms  which  have  been  approved  by  the  courts  of 
nearly  every  State  in  the  Union.  "  Wherever  a  corporation 
is  acting  within  the  scope  of  the  legitimate  purposes  of  its 
institution,  all  parol  contracts  made  by  its  authorized 
agents  are  express  promises  of  the  corporation  ;  and  all 
duties  imposed  on  them  by  law,  and  all  benefits  conferred 
at  their  request,  raise  implied  promises,  for  the  enforcement 
of  which  an  action  lies.3 

1  Levering  v.  Mayor,  7  Humph.  (Tenn.)  553, 1847 ;  Abbott  Corp.  Digest, 
tit.  Seal,  p.  725,  sec.  31,  and  the  many  cases  there  cited ;  Benedict  v.  Den- 
ton, Walk.  Ch.  336 ;  Musser  v.  Johnson,  42  Mo.  74. 

*  Bank  of  Columbia  v.  Patterson,  7  Cranch  (U.  S.)  299,  306,  1813;  Bank 
v.  Wister,  2  Pet.  318;  Davenport  v.  Insurance  Company,  17  Iowa,  276; 
Ring  v.  Johnson  County,  6  Iowa,  265.  See,  further,  chapters  on  Contracts 
and  Property,  post,  sees.  883.  750.  Corporate  seal  affixed  to  the  note  of  the 
corporation  makes  it  a  specialty,  having  in  this  respect  the  same  effect  as 
the  seal  of  a  natural  person.  Clarke  v.  Farmers'&c.Co.,15  Wend.  256 ;  lb.  265  ; 
Benoist  v.  Carondolet,  8  Mo.  250 ;  Sturtevant  v.  Alton,  3  McLean,  393. 
Lease  held  void  for  want  of  the  corporate  seal.  Kinzie  v.  Chicago,  2  Scam. 
(111.)  188.  But  otherwise  of  an  authorized  agreement  by  an  agent  of  a  cor- 
poration to  sell  lands:  Legrand  v.  The  College,  5  Munf.  (Va.)  324;  or  au- 
thorized assignment  of  a  lease:  Sanford  v.  Tremlett,  42  Mo.  384.  Corpo- 
rate seal  to  conveyance  by  county  commissioners :  Bestor  v.  Powers,  2  Gilm. 
(111.)  126. 

Further,  see  Index — Seal. 

Mr.  Broom  gives  an  excellent  view  of  the  exceptions  to  the  rule  that 
corporations  must  contract  by  deed,  aa  recognized  and  established  by  the 
modern  English  decisions.     Broom  Com.  on  Com.  Law,  562-569. 


356  MUNICIPAL     CORPORATIONS.  [Ch.  IX. 

CHAPTER  IX. 

Municipal  Elections  and  Officers. 

§  133.  In  considering  the  Creation  and  Constitntion  ol 
Municipal  Corporations,  we  have  now  reached,  in  its  order, 
the  subject  of  Municipal  Elections  and  Officers.  It 
will  be  treated  under  the  following  heads  :  — 

1.  Municipal  Popular  Elections — sees.  134-138. 

2.  Special  Tribunal  to  Determine  Election  Contests  for 
Municipal  Offices — sees.  139-144. 

3.  Power  to  Create  and  Appoint  Municipal  Officers — 
sees.  145-152. 

4.  Oath  and  Official  Bond — sees.  153-155. 

5.  Duration  of  Official  Term — sees.  156-160. 

6.  Vacancies  in  Municipal  Offices — sec.  161. 

7.  Refusal  to  Serve  in  Office — sec.  162. 

8.  Resignation  of  Municipal  Officers — sees.  163-167. 

9.  Compensation  of  Municipal  Officers — sees.  168-173. 

10.  Liability  of  the  Corporation  to  the  Officer — sec.  174. 

11.  Liability  of  the  Officer  to  the  Corporation  and  to 
Others — sec.  175. 

12.  Amotion  and  Disfranchisement — sees.  177-194. 

Municipal  Popular  Elections. 

§  134.  Elections  by  the  people,  with  exceptions  in  a  few 
States,  are  by  folded  or  secret  ballot,  and  not  open  or  viva 
voce.1  The  qualifications  of  electors  or  voters  are  fixed  by 
the  constitution  and  laws,  and  cannot  be  changed  by  any 
ordinance  or  act  of  the  corporation.'    Residence  for  a  certain 

1  Cooley  Const.  Lim.  chap.  XVII.  598,  where  the  subject  of  Popular 
Elections,  the  Right  to  Participate  therein,  the  Conditions  Necessary  to 
the  Exercise  of  the  Right,  the  Manner  of  Voting,  the  Conduct  and  Suffi- 
ciency of  Elections  are  satisfactorily  presented;  and  the  rules  and  doctrines 
deduced  from  the  cases  are,  in  general,  applicable  to  popular  municipal 
elections. 

8  Petty  v.  Tooker,  21  N.  Y.  267 ;  Commonwealth  t>.  Woelper,  8  Serg.  & 


Ch.  IX.  J  MUNICIPAL     POPULAR    ELECTIONS.  257 

period  within  the  municipality  is  almost  invariably  required 
in  express  terms,  as  one  of  the  qualifications  of  the  right  to 
vote  at  elections  therein,  and  as  one  of  the  conditions  of 
eligibility  to  hold  a  municipal  office.  Non-residents  of  the 
corporation  have,  however,  been  held  competent  to  be 
elected  to  office  when  residence  was  not  expressly  required, 
but  the  decisions  cannot,  perhaps,  be  said  to  conclude  the 
point,1  and,  if  extended  to  the  higher  offices,  are  hardly 

Rawle,  29  ;  People  v.  Phillips,  1  Denio,  388  ;  Rex  v.  Spencer,  3  Burr.  1827 ; 
Rex  v.  Mayor  of  Weymouth,  7  Mod.  371 ;  Newling  v.  Francis,  3  Term  R. 
189;  Rex  v.  Chitty,  5  Ad.  &  E.  609;  Rex  v.  Burnstead,  2  B.  &  Ad.  699. 

1  Municipal  officers  may  be  elected  from  non-residents  of  the  corporation 
when  there  is  no  statute  or  consitution  prohibiting  it,  particularly  when 
the  office  to  be  filled  is  one  requiring  professional  skill,  and  not  representa- 
tive or  legislative  in  its  character.  State  v.  Blanchard  (city  surveyor),  6  La. 
An.  515,  1851.  The  conclusion  was  reached  with  hesitation,  but  the  whole 
court  concurred.  lb.  So  in  The  State  v.  Swearingen,  12  Geo.  23,  1852,  it 
was  decided  where  the  charter  of  the  town  provided  "for  the  election  of 
city  officers  by  the  people  of  the  city  qualified  to  vote,"  and  was  silent  as  to 
requiring  the  officers  to  be  residents,  that  a  person  might  legally  be  elected 
and  qualified  who  was  not  a  resident  of  the  place.  Residence  as  a  qualifi- 
cation for  municipal  office:  See  Commonwealth  v.  Jones,  12  Pa.  St.  365. 
Residents,  who  are:  Cohen  v.  Wigfall,  8  Rich.  Law,  237;  2  lb.  489; 
Goldersleeve  v.  Alexander,  2  Speer  (South  Car.)  298.  In  England,  by  the 
Municipal  Corporations  Act  (sec.  9),  inhabitant  householders  resident 
within  the  borough,  or  within  seven  miles  of  the  borough,  and  rated  to  the 
relief  of  the  poor,  are  made  burgesses  or  citizens.  Before  that  act  was 
passed,  residence  in  the  freeman  or  citizen  was  sometimes  required,  to  ren- 
der him  eligible  to  office,  although  non-residents,  wherever  residing,  might, 
by  a  similar  perversion  of  the  purposes  of  a  municipal  corporation,  be  ad- 
mitted to  freedom  or  membership,  unless  expressly  restrained  by  the  char- 
ter; and  if  residence  was  expressly  required  as  a  condition  of  eligibility,  it 
was  not  necessary  that  the  officer  should  continue  to  reside  in  the  place 
while  holding  the  office.  Not  only  so,  but  it  was  held  that  where  residence 
was  necessary  as  a  qualification  during  office,  it  was  not,  by  implication, 
necessary  that  the  person  elected  should  have  been  a  resident  at  the  time 
of  the  election.  And  when  inhabitancy  was  requisite,  it  meant  not  merely 
residence,  but  keeping  a  house  within  the  place,  and  paying  scot  and  lot. 
Willcockon  Munic.  Corp.  188,  pi.  472;  lb.  191,  pi.  481 ;  lb.  193,488;  Rex  v. 
Monday,  Cowp.  539;  Rex  v.  Mallet,  2  Barnard.  408;  Rex  v.  Cambridge,  4 
Burr.  2008;  Rex  v.  Heath,  1  Barnard.  417.  These  rules  are  of  a  very  doubt- 
ful application  in  this  country,  since  here  all  of  the  inhabitants  are  mem- 
bers of  the  corporation,  and  non-residents  cannot  become  such.  And,  in 
general,  it  may  be  said  that  a  person  is  an  inhabitant  or  resident  who  has 
his  domicil  or  home  in  the  place :  but  it  is  foreign  to  the  purpose  of  thi» 
17 


258  MUNICIPAL     CORPORATIONS.  [Ch.  IX. 

consistent  with  the  fundamental  idea  of  municipal  govern- 
ment. 

§  135.  The  choice  of  a  disqualified  person  is  ineffectual. 
Thus,  if  the  law  requires  freeholders  to  be  chosen  for  certain 
officers,  the  election  of  a  person  not  a  freeholder  is  void.1 
But  unless  the  votes  for  an  ineligible  person  are  expressly 
declared  to  be  void,  the  effect  of  such  a  person  receiving  a 
majority  of  the  votes  cast  is,  according  to  the  weight  of 
American  authority,  and  the  reason  of  the  matter  (in  view 
of  our  mode  of  election,  without  previous  binding  nomina- 
tions, by  secret  ballot,  leaving  each  elector  to  vote  for  whom- 
soever he  pleases),  that  a  new  election  must  be  held,  and 

work  to  enter  into  the  difficult  questions  which  have  arisen  with  respect  to 
residency  and  domicil.  Hinds  v.  Hinds,  1  Iowa,  36  ;  Story  Confl.  Laws, 
sec.  43;  Putnam  v.  Johnson,  10  Mass.  488;  Thorndike  v.  Boston,  1  Met.  245. 
Public  officers  vacate  their  office  by  permanent  removal  from  the  territorial 
limits  of  the  corporation.  Barre  v.  Greenwich,  1  Pick.  120;  Rumsey  v. 
Campton,  16  N.  H.  567;  Giles  v.  School  District,  11  Fost.  304.  But  a  tem- 
porary removal,  with  an  intention  to  return,  will  not,  of  itself,  have  this 
effect,  Van  Orsdall  v.  Hazard,  3  HiU  (N.  Y.)  243,  1842;  People  v.  Metro- 
politan Police  Board,  19  N.  Y.  201;  Lyon  v.  Commonwealth,  3  Bibb  (Ky.) 
430;  Hex  v.  Exeter,  Comb.  197. 

"  Nice  questions,"  says  Mr.  Harrison  (Munic.  Manual  for  Upper  Canada, 
2d  ed.  60,  note),  arise  as  to  when  a  party  can,  or  cannot  be  said  to  be  a 
resident  of  a  municipality.  A  man  cannot,  within  the  meaning  of  the  muni- 
cipal laws  of  Canada,  be  said  to  be  resident  in  two  municipalities  at  the 
the  same  time.  A  man's  residence  is  where  his  home  is  situate* — where  Ins 
familv  live.  An  occasional  absence  from  his  home  to  attend  to  business  in 
another  municipality  does  not  make  his  home  less  his  residence.  Where  A. 
had  a  dwelling-house  at  Bowmanville,  where  his  wife  and  family  lived,  but 
had  a  saw-mill  and  store  and  was  postmaster  in  the  township  of  Cartwright, 
which  occasioned  him  frequently  to  visit  that  place,  and  who,  while  there, 
used  to  board  with  one  of  his  men  in  a  house  owned  by  himself, — Held,  that 
after  voting  in  Bowmanville,  he  had  no  right  to  vote  in  Cartwright.  The 
Queen  ex  rel.  Taylor  v.  Caesar,  11  U.  C.  Q.  B.  461.  Mere  colourable  residence 
is  in  no  case  sufficient.  The  King  v.  Duke  of  Bedford,  6  T.  R.  560.  Each 
case  must,  to  a  great  extent,  depend  on  its  own  circumstances.  As  to 
what  is  sufficient,  see  The  King  v.  Sergeant,  5  T.  R.  466 ;  Bruce  v.  Bruce,  2 
B.  &  P.  229;  The  King  v.  Mitchell,  10  East,  511;  Whithorn  v.  Thomas,  7 
M.  &  G.  1 ;  The  Queen  ex  rel.  Forward  v.  Bartels,  7  TJ.  C.  C.  P.  533. 

'Spears.  Robinson,  29  Maine,  531,  1849;  State  v.  Swearingen,  12  Geo. 
23,  1852;  State  v.  Gastinel,  20  La.  An.  114,  1868. 


Ch.  IX  ;  MUNICIPAL    POPULAR    ELECTIONS.  25& 

not  to  give  the  office  to  the  qualified  person  having  the  next 
highest  number  of  votes.1 

§  136.  Where  it  is  discretionary  with  the  municipal  au- 
thorities whether  they  will  hold  an  election  or  not,  votes  at 
an  unauthorized  election  are  simply  nullities.1  Elections 
fixed  by  law  at  a  certain  time  and  place  may  be  legally 
holden,  although  notice  has  not  been  published  or  given  ; 
but  if  the  time  be  not  defined  by  statute,  and  is  to  be  fixed 
by  notice,  the  notice  required  is  imperative.2     Time  and 

1  State  v.  Swearitigen,  12  Geo.  23;  State  v.  Giles,  1  Chand.  (Wis.)  112  ; 
State  v.  Smith,  14  Wis.  497;  Saunders  v.  Haynes,  13  Cal.   145;  State  v. 
Gastinel  (under  charter),  20  La.  An.  114;  Cooley  Const.  Lim.  620;  Com- 
monwealth ex  rel.  McLaughlin  v.  Cluley,  Sheriff,  Pitts.  Leg.  Jour.  February 
3,  1868.     But  in  Indiana  the  view  is  taken  that,  whether  an  election,  be- 
cause of  the  ineligibility  of  the  candidate  receiving  the  highest  number  of 
ballots,  is  a  failure,  and  must  be  held  over,  or  whether  the  highest  eligible 
candidate  is  elected,  depends  upon  circumstances:    1.  If  the  candidate  re- 
ceiving the  highest  number  of  votes  is  ineligible,  but  from  a  cause  unknown 
to  the  voters,  and  which  they  were  not  hound  to  know — as,  for  example,  in- 
fancy, want  of  naturalization,  and  the  like — the  result  is  a  failure,  and 
there  must  be  another  election.     2.  If  the  voters  know,  or  are  bound  to 
know,  the  inelicility  of  a  candidate,  the  election  is  not  a  failure,  as  the 
eligible  candidate  receiving  the  highest  number  of  votes  is  legally  elected. 
3.  Where  the  ineligibility  of  a  candidate  arises  from  his  holding,  or  having 
held,  a  public  office,  the  people  within  the  jurisdiction  of  such  office  are 
held  in  law  to  know — are  chargeable  with  notice  of — such  ineligibility, 
and  votes  given  for  such  a  candidate  are  of  no  effect,  and  his  highest  eligible 
competitor  is  elected.    Gulick  v.  New,  14  Ind.  93,  102,  1860, per  Perkins,  J.; 
commenting  on  State  v.   Swearingen  (case  of  non-residency),   12  Geo.  23; 
Opinion  of  Judges,  38  Maine,   appendix,  where  a  portion  of  the  people 
voted  for  a  person  not  in  being;  State  v.  Giles,  1  Chand.  (Wis.)  112. 

In  England,  candidates  are  previously  nominated  and  known,  and  the 
votes  are,  or  at  least  until  very  recently  have  been,  open,  and  there  are 
cases  there  which  decide  or  favor  the  proposition  that  votes  for  a  disquali- 
fied person,  given  after  notice  of  disqualification,  are  thrown  away,  and  the 
other  candidate  is  elected.  Grant  on  Corp.  203-208,  and  cases  cited.  But 
see,  as  to  disqualification  and  notice:  Regina  v.  Hiorns,  7  Ad.  &  E.  690' 
Regina  v.  Councilors  of  Derby,  7  Ad.  &  E.  419;  and  particularly  Regina  v. 
Mayor  of  Tewkesbury,  Law  Rep.3  Q.  B.629,  1868;  Regina  v.  Lcdyard,  8  Ad. 
&  E.  535;  Rawlinson  on  Corp.  (5th  ed.)  64,  note,  and  authorities.  "The 
principle  of  these  decisions,"  says  the  London  Law  Times,  January  25, 
1873,  "  must  be  materially  affected  by  secret  voting." 

2  Opinions  of  Judges,  7  Mass.  525;  Same,  15  lh.  537;  Cooley  Const. 
Lim.  603. 

*  Cooley,  Const.  Lim.  303,  and  cases  cited;    People  v.   Brenham,  3  Cal 


260  MUNICIPAL    CORPORATIONS.  'Ch.  IX. 

place  are  generally  essential,  but  many  of  the  details  as  to 
the  conduct  of  elections  are  usually  regarded  as  directory.1 
Courts  are  anxious  rather  to  sustain  than  to  defeat  the 
popular  will.' 

§  137.  Thus,  an  inaccurate  designation  of  tb^  name  of 
the  office  voted  for — as,  for  example,  "Police  Justice,"  in- 
stead of  "Police  Magistrate  "  (the  term  used  in  the  statute) 
— will  not  render  the  votes  invalid,  where  the  legislative 
provisions  make  clear  the  intention  of  the  voters  in  thus 
casting  their  ballots — to  which  intention  effect  should  be 
given.'  But  if  a  specific  r.umber  of  officers  only  can  be 
chosen — for  example,  four — ballots  containing  the  names 
of  more  than  four  persons  for  the  office  in  question  must  be 
rejected.  Any  other  doctrine  might  result  in  giving  the 
elector  two  votes.     There  are  usually  two  competing  tickets, 

477,  1851 ;  People  v.  Fairbury,  51  111.  149,  1869.  Computation  of  time  of 
notice.  Queen  v.  Justices,  8  Ad.  &  E.  173 ;  Mitchell  v.  Foster,  9  Dowl.  P. 
C.  527. 

1  Dickey  v.  Hurlburt,  5  Cal.  343 ;  People  v.  Knight  (essentialness  of 
place),  13  Mich.  424;  Gass  v.  State,  34  Ind.  425,  1870.  Where  the  legisla- 
ture provided  that  the  polls  of  the  different  wards  should  be  kept  open 
until  10  o'clock  p.  m.  and  they  were  closed  at  8  o'clock,  the  election  was  set 
aside.  Pennsylvania  District  Election,  2  Par.  (Pa.)  526;  Clark's  Case,  lb. 
521.  Illegal  adjournment  of  election  to  a  different  place  from  the  one  desig- 
nated in  the  notice.  Commonwealth  v.  Commissioners,  &c,  5  Rawle,  75. 
Where  an  election  is  held  on  a  day  subsequent  to  that  named  in  the  charter, 
the  acts  of  officers  thus  elected  are  valid,  as  respects  the  public  and  third 
persons,  and  cannot  be  collaterally  inquired  into.  Coles  County  v.  Allison 
23  111.  437,  distinguished  from  Haynes  v.  Washington  County,  19  111.  66, 
and  approved  in  People  v.  Fairbury,  51  111.  149,  1869.  Title  of  officers 
elected  before  the  legal  incorporation  of  a  place  may  be  validated  by  the 
legislature.     State  v.  Kline,  23  Ark.  587.     Post,  sees.  194,  214,  716  n. 

»  Skerritt's  Case,  2  Par.  (Pa.)  516 ;  Boileau's  Case,  2  Par.  505 ;  Carpen- 
ter's Case,  2  Par.  537;  New  Orleans  v.  Graihle,  9  La.  An.  573;  Clifton®. 
Cook,  7  Ala.  114;  People  v.  Cook,  14  Barb.  259;  8  N.  T.  67.  The  rule  as 
therein  stated  is  regarded  by  Mr.  Justice  Cooley  as  "  an  eminently  proper 
one,  and  to  furnish  a  very  satisfactory  test  of  what  is  essential,  and  what 
not,  in  election  laws."  Const.  Lim.  618.  See,  also,  as  to  charter  elections 
and  returns,  Ex  parte  Heath,  3  Hill  (N.  Y.)  42,  53;  People  v.  Stevens,  5  Hill, 
616;  Morgan  v.  Quackenbush,  22  Barb.  72.  Courts  will  not  enjoin  municipal 
elections  unless  the  power  and  right  to  do  so  plainly  exist.  Smith  v.  Mc- 
Carthy, 56  Pa.  St.  359.     Post,  sec.  245,  note. 

*  People  v.  Matteson,  17  111.  167,  1855. 


Ch.  IX.]  MUNICIPAL    POPULAR    ELECTIONS  261 

and  if  an  elector  can,  in  the  case  supposed,  cast  a  ballot 
containing  Jive  names,  lie  may  one  of  eight,  and  thus  vote 
(if  he  chooses  to  insert  the  names)  for  both  tickets.1 

§  138.  Receiving  illegal  or  improper  votes  whl  not  alon^ 
vitiate  an  election.  It  must  be  shown  affirmatively,  in 
order  to  overturn  the  declared  result,  that  the  wrongful 
action  changed  it.  This  rule  applies  to  corporation  elec- 
tions as  well  as  others.2 

1  People  v.  Loomis,  8  "Wend.  396,  1832;  People  v.  Seaman,  5  Denio,  409. 
"Where  only  one  vacancy  exists,  votes  gi\en  for  two  persons  jointly  are  thrown 
away.  Rex  v.  Mayor  of  Leeds,  7  Ad.  &  E.  963 ;  and  in  this  case  it  was 
held  that  a  third  candidate  chosen  by  a  single  regular  vote  was  elected; 
but  as  to  votes  being  thrown  away,  see  supra.  Where,  by  an  erroneous  con- 
struction of  the  act,  an  election  has  been  held  for  but  one  councillor,  instead 
of  two,  the  candidate  second  on  the  poll  cannot  have  a  mandamus  to  admit 
him  to  the  office.  Regina  v.  Hoyle,  H.  T.  1855,  cited  in  Rawl.  on  Corp.  65, 
note.  His  remedy  is,  by  mandamus,  to  have  a  new  election  held  for  coun- 
cillor, or  (if  the"  office  be  filled)  by  a  quo  waranto.  lb.  The  voting  papers 
(corresponding  in  function  to  the  American  ballot,  except  that  it  is  to  be 
signed  by  the  voter  and  openly  voted)  must  distinguish  between  different 
classes  of  candidates;  and  hence  where  an  election  of  four  councillors  had 
taken  place  on  the  1st  of  November,  three  of  whom  were  to  supply  ordinary 
vacancies,  and  one  an  extraordinary  vacancy,  but  no  distinction  had  been 
made  between  them  in  the  notice  of  election,  in  the  voting  papers,  or  in 
publishing  the  names  of  the  persons  elected,  the  election  was  irregular  and 
void.  Regina  v.  Rowley,  3  Q.  B.  143;  S.  C.  in  Exchequer  Chamber,  6  Q. 
B.  668.  See  sec.  47,  Municipal  Corporations  Act,  and  also  7  Will.  IV.  and 
1  Vict.  chap.  LXXVIII.  sec.  11.  Patterson,  J .,  says:  "There  is  no  objection 
to  the  votes  all  being  given  on  the  same  paper,  if  a  proper  distinction  were 
made."  Regina  v.  Rowley,  supra;  and  see  Rex  v.  Winchester,  2  Ad.  &  E. 
215.  By  the  Municipal  Corporations  Act,  sec.  32,  the  voting  paper  is  re- 
quired to  contain  "  the  Christian  and  surnames  of  the  persons  for  whom  the 
burgess  votes,  with  their  respective  places  of  abode,  such  voting  parjer  being 
previously  signed  with  the  name  of  the  burgess  voting  and  the  name  of  the 
street  in  which  the  property  for  which  he  appears  to  be  rated  is  situate." 
In  construction  of  this  section,  it  is  held  that  the  Christian  name  of  the  per- 
son voted  for  need  not  be  written  out  in  full;  the  contraction  ordinarily 
used  is  sufficient.  Regina  v.  Bradley,  3  E.  &  E.  634.  But  it  seems  that  an 
initial  letter  only  would  not  be  sufficient,  lb.  Though  it  would  be  iu  the 
signature  of  the  voter.  Regina  v.  Avery,  18  Q.  B.  576;  Regina  v.  Tart,  1  E. 
&  E.  618.  "Places  of  abode"  held  to  mean  places  of  residence,  not  oi 
business.  Regina  v.  Hammond,  17  Q.  B.  772;  Regina  v.  Deighton,  5  Q.  B. 
896 ;  Dav.  &  M.  682. 

Ex  parte  Murphy,  7  Cow.  153,   1827;   People  v.  Cicotte,  16  Mich.  283, 


262  MUNICIPAL    CORPORATIONS.  [Ch.  IX. 

Special  Tribunal  to  Decide  Election  Contests  for  Muni- 
cipal Offices. 

§  139.  A  constitutional  provision  that  the  judicial 
poioer  of  the  state  shall  be  vested  in  a  supreme  and  inferior 
courts,  does  not  disable  the  legislature,  in  creating  muni- 
cipal corporations,  from  providing  that  the  city  council 
shall  be  the  judge  of  the  election  of  its  mayor,  members, 
and  other  officers,  and  from  prohibiting  the  ordinary  courts 
of  justice  from  inquiring  into  the  validity  of  the  determina- 
tion of  the  city  council.1 

§  140.  Where,  by  the  charter,  the  council  are  author- 
ized to  provide,  by  ordinance,  a  special  tribunal  before 
which  contested  municipal  elections  shall  be  tried,  and  to 
provide  the  mode  of  procedure,  it  may  pass  such  ordinance 
after  an  election  has  been  held,  and  authorize  it  to  deter- 
mine contests  arising  out  of  a  previous  election.  After  such 
determination,  quo  warranto  will  lie  against  the  party  who 

1868 ;  First  Parish  v.  Stearnes,  21  Pick.  148 ;  Judkins  v.  Hill,  50  N.  H.  140, 
1870;  Johnston  v.  Charleston,  1  Bay  (S.  C.)  441,  1795.  In  this  last  case  the 
city  council  was  specially  authorized  to  judge  of  elections  of  corporation 
officers,  and  the  court,  respecting  a  contest  before  the  council,  said :  "  If  the 
bad  votes  be  deducted  from  the  highest  candidate,  and  he  still  has  a  ma- 
jority, his  election  is  good;  but  if,  after  such  deduction,  the  next  candidate 
has  an  equal  or  greater  number  of  votes  than  the  other,  and  it  is  doubtful 
which  candidate  had  the  greatest  number  of  valid  votes,  the  council  should 
send  the  matter  back  to  the  people." 

1  Mayor,  &c.  v.  Morgan,  7  Martin,  La.  CO.  S.)  1 ;  9  II.  (N.  S.)  381,1828; 
infra,  sec.  182.  In  Wammacks  v.  Holloway,  2  Ala,  31,  1841,  a  shrievalty 
contest,  it  was  denied  that  it  was  within  the  constitutional  power  of  the 
legislature  to  deprive  a  party  claiming  a  public  office  of  the  right  to  a  jury 
trial  by  making  the  summary  or  extra-judicial  method  conclusive.  And  to 
this  effect  was  the  opinion  of  two  of  the  judges  in  The  People  v.  Cicotte,  16 
Mich.  283.  Since  elections  to  offices  are  not  in  the  nature  of  contracts, 
there  does  not  seem  to  be  any  substantial  reason,  in  view  of  the  plenary 
authority  of  the  legislature  over  offices  and  officers,  to  doubt  its  power  to 
provide,  prospectively,  by  a  general  act,  the  mode  in  which  contests  shall 
be  determined.  See  State  v.  Fitzgerald,  44  Mo.  425,  1869;  Ewing  v.  Filley, 
43  Pa.  St.  384;  Commonwealth  v.  Leech,  44  Pa.  St.  332;  Cooley,  Const. 
Lim.  276;  II.  623,  624,  note;  Smith  v.  New  York,  37  N.  Y.  518;  People  v. 
Mahaney,  13  Mich.  481 ;  Steele  v.  Martin,  6  Kansas,  430,  1870. 


Ch.  IX.]      MUNICIPAL     POPULAR    ELECTIONS— CONTEST.        263 

was  unsuccessful  before  the  local  tribunal,  if  lie  continue  to 
claim  and  exercise  the  office. ' 

§141.  Common  law  courts  of  general  and  original 
jurisdiction  have  the  admitted  power  to  inquire  into  the 
regularity  of  elections,  corporate  and  others,  by  quo  war- 
ranto, or  an  information  in  that  nature,  and,  in  certain 
cases,  by  mandamus.  It  is  not  unusual  for  charters  to 
contain  provisions  to  the  effect  that  the  common  council  or 
governing  body  of  the  municipality  "  shall  be  the  judge  of 
the  qualifications,"  or  "  of  the  qualifications  and  election 
of  its  own  members,"  and  of  those  of  the  other  officers  of 
the  corporation.  What  effect  do  provisions  of  this  kind 
have  upon  the  jurisdiction  of  the  superior  courts  ?  The 
answer  must  depend  upon  the  language  in  which  these  pro- 
visions are  couched,  viewed  in  the  light  of  the  general  laws 
of  the  state  on  the  subjects  of  contested  elections  and  quo 
warranto.  The  principle  is,  that  the  jurisdiction  of  the 
courts  remains  unless  it  appears  with  unequivocal  certainty 
that  the  legislature  intended  to  take  it  away.  Language 
like  that  quoted  above  will  not,  ordinarily,  have  this  effect, 
but  will  be  construed  to  afford  a  cumulative  or  primary 
tribunal  only,  not  an  exclusive  one.  A  provision  that  no 
court  should  take  cognizance  of  election  cases  by  quo 
warranto,  &c,  would  doubtless  be  sufficient  to  divest  the 
jurisdiction  of  the  judicial  tribunals.  And  so,  perhaps,  of 
a  provision  that  the  council  should  have  the  sole,  or  the 
final,  power  of  deciding  elections.2 

1  State  v.  Johnson,  17  Ark.  407,  1856  (mayoralty  contest). 

5  Ex  parte  Heath,  3  Hill  (N.  Y.)  42,  52,  and  cases  cited  by  Cowen,  J., 
who  is  of  opinion  that  no  mere  negative  words,  and  that  nothing  less  than 
express  vonls,  will  oust  the  supervisory  jurisdiction  of  the  courts.  Greer  «. 
Shackelford,  Const.  Rep.  G42;  State  v.  Fitzgerald,  44  Mo.  435,  1869;  Com- 
monwealth v.  McCloskey,  2  Rawle,  369  (two  judges  dissenting) ;  Ex  parte 
Strahl,  17  Iowa,  369,  1864;  State  v.  Funck,  17  Iowa,  365,  1864;  Bateman  v. 
Megowan,  1  Met.  (Ky.)  533;  Wanimacks  r.  Holloway,  2  Ala.  31,  1841  (sher- 
iffalty contest) ;  Hummer  v.  Hummer,  3  G.  Greene  (Iowa),  42;  Macklot  v. 
Davenport,  17  Iowa,  379;  Gass  v.  State,  34  Ind.  424,  1870.  State  v.  Mar- 
low,  15  Ohio  St.  114;  post*  chapters  on  Quo  Warranto,  Mandamus,  and  Rem- 
edies against  Illegal  Corporate  Acts.  Action  of  board  of  canvassers  not 
-conclusive  of  the  right  of  the  party  to  an  office,  though  it  may  deprive 
nim,  in  the  first  instance,  of  a  commission  or  certificate       Quo  tea  "rant* 


264  MUNICIPAL     CORPORATIONS.  [Ch.  IX. 

§  142.  Agreeably  to  the  rule  just  stated,  a  clause  in  the 
charter  of  a  municipal  corporation,  that  the  city  council 
"shall  be  the  judges  of  the  election,  returns  and  qualifica- 
tions of  their  own  members,  and  of  all  other  officers  of  the 
corporation,"  was  held  by  the  Supreme  Court  of  Delaware 
not  to  oust  the  Superior  Court  of  the  state  (invested  with 
the  usual  powers  of  the  King's  Bench)  of  its  superintending 
jurisdiction  over  corporations,  and  it  was  declared,  if  the 
council  should  erroneously  decide  that  a  person  duly 
elected  by  the  people  to  an  office  was  not  qualified  to  hold 
it,  a  mandamus  might  issue  commanding  them  to  admit 
him  to  the  office.1 

lies  notwithstanding  the  determination  of  the  board  of  canvassers,  on  which 
full  investigation  may  be  had.  State  v.  Governor,  1  Dutch.  (N.  J.)  331, 
1856;  State  v.  The  Clerk,  II.  354;  people  v.  Kilduff,  15  111.  492;  Cooley 
Const.  Lim.  623,  and  cases  cited;  Hadley  v.  Mayor,  33  N.  Y.  603,  1865; 
Anthony  v.  Halderman,  7  Kansas,  50,  1871. 

Conformably  to  the  views  expressed  in  the  text  it  has  been  recently  de- 
cided by  the  Supreme  Court  of  Pennsylvania,  that  the  right  given  to  city 
councils  to  be  the  judges  of  the  qualification  of  their  own  members  "  in 
like  manner  as  each  branch  of  the  legislature"  does  not  preclude  the  juris- 
diction of  the  courts  to  try  the  question  of  qualification  by  quo  warranto, 
though  the  opinion  of  the  profession  seems  to  be  otherwise,  and  it  was 
otherwise  held  in  the  court  below.  Commonwealth  v.  Huhn,  1872,  not  yet 
reported. 

A  special  remedy  given  by  statute  is  cumulative  and  not  exclusive  of  the 
ordinary  jurisdiction  of  the  courts,  unless  such  be  the  manifest  intention  of 
the  statute.  Attorney-General  v.  Corporation  of  Poole,  4  Mylne  &  Cr.  17, 
overruling  2  Keen,  190.  See,  also,  Attorney-General  v.  Aspinwall,  2  Mylne 
&  Cr.  613.  And  hence  a  breach  of  a  public  trust  by  a  municipal  corpora- 
tion is  held,  in  England,  to  be  cognizable  in  chancery,  notwithstanding  a 
special  appeal  be  given  in  the  particular  matter  to  the  lords  of  the  treasury. 
II.  ;  Parr  v.  Attorney-General,  8 CI.  &F.  409;  Attorney-General  v.  Corpora- 
tion of  Litchfield,  11  Beav.  120.  See  chapter  on  Remedies  against  Illegal 
Corporate  Acts,  post,  sec.  730. 

1  State  v.  Wilmington,  3  Harring.  (Del.)  294,  1840;  S.  P.  State  v.  Fitz- 
gerald, 44  Mo.  426, 1869.  So,  in  Iowa,  where  the  city  charter  provided  that 
the  council  should  be  "  the  judge  of  the  election  and  qualifications  of  its 
own  members,"  but  no  ordinance  had  been  passed  prescribing  any  method 
of  trial,  it  was  held  that  the  mere  provision  in  the  charter  did  not  preclude 
a  contestant  from  a  resort  to  an  information  in  the  nature  of  a  quo  warranto. 
State  D.  Funck  (mayoralty  contest),  17  Iowa,  365,  1864.  In  a  previous  case, 
:he  same  court  decided  that  under  a  charter  making  the  council  "judges  of 
the  election,  returns  and  qualifications  of  their  own  members,"  it  was  com- 
petent foi  the  council  to  pass  a  general  ordinance  providing  for  the  trial  of 


Ch.  IX.]  MUNICIPAL    POPULAR    ELECTIONS.  265 

§  143.  Where  the  legislative  intent  is  clear,  that  the 
action  of  the  council  in  contested  election  cases  shall  be 
iinal,  the  court  will  not  inquire  into  election  frauds,  since 
the  council  is  the  judge  of  this  matter  as  of  others  pertain- 
ing to  the  election ;  but  the  courts  will  inquire  whether,  in 
point  of  law,  there  was  an  office  or  vacancy  to  be  filled.1  - 

§  144.  Where,  by  statute,  the  returns  of  all  municipal 
elections  were  declared  to  be  "subject  to  the  inquiry  and 
determination  of  the  Court  of  Common  Pleas  upon  the 
complaint  of  fifteen  or  more  voters  filed  in  said  court  within 
twenty  days,  and  the  court,  in  judging  of  such  elections, 
was  directed  to  proceed  upon  the  merits  thereof,  and  deter- 
mine finally  concerning  the  same  according  to  the  laws  of 
the  commonwealth,"  this  was  held  to  exclude  the  remedy 
by  quo  warranto  and  all  common  law  remedies  as  to  matters 
which  might  have  been  investigated  in  the  special  mode 
prescribed  by  the  statute.  The  opinion  was  expressed  that 
the  judgment  of  the  Common  Pleas  was  final ;  that  it  could 
not  be  reversed  by  quo  warranto  or  in  any  other  collateral 
manner,  and  that  even  a  certiorari  would  enable  the  ap- 

contested  elections  of  city  officers,  and  making  the  council  the  tribunal  for 
the  trial  of  the  same,  such  an  ordinance  being  consistent  with  the  general 
laws  of  the  state,  which,  in  providing  special  tribunals  for  contesting  state, 
county,  and  township  officers,  omitted  to  make  any  special  provision  for 
contested  elections  to  municipal  offices.  Ex  parte  Strahl,  lGIowa,  369,  1864 
^mayoralty  contest). 

1  Commonwealth  v.  Leech,  44  Pa.  St.  832,  1863;  Commonwealth  v. 
Meeser,  lb.  341.  Construction  of  words  making  the  number  of  members 
of  the  council  from  a  ward  depend  upon  "  the  list  of  the  taxable  inhabi- 
tants/' It.;  Peoples.  Wetherell,  14  Mich.  48;  Tompert  v.  Lithgow,  1  Bush 
(Ky.)  176,  1866. 

Pending  legal  proceedings,  the  court,  in  favor  of  the  officer  apparently 
entitled,  enjoined  the  adverse  claimant  from  attempting  to  take  possession  of 
the  office.  Ewing  v.  Thompson,  43  Pa.  St.  384,  1862;  Kerr  v.  Trego,  47  Pa 
St.  16,  292,  1864.  Certificate  of  election  is  the  prima  facie  written  title  tc 
office,  and  remains  so  until  regularly  set  aside  or  annulled.  lb.  Post,  sec. 
213. 

The  council,  as  board  of  canvassers,  cannot  investigate  the  legality  of  an 
election,  but  are  concluded  by  the  returns  of  the  judges;  but  the  council, 
when  sitting  a3  a  tribunal  to  judge  of  the  election  of  members  of  their 
body,  may  go  behind  the  returns  and  inquire  into  the  fact  as  to  who  ia 
elected.     States.  Rahway,  33  N.  J.  Law,  111,  186S. 


«^66  MUNICIPAL     CORPORATIONS.  ["Ch.  IX. 

pellate  court  to  examine  only  the  regularity  of  the  proceed- 
ings of  the  Common  Pleas,  but  not  to  examine  the  case  on 
its  merits  as  disclosed  in  the  evidence.1 

1  Commonwealth  v.  Garrigues,  28  Pa.  St.  9,  1857;  Commonwealth  «. 
Baxter,  35  Pa.  St.  263;  Commonwealth  v.  Leech,  44  Pa.  St.  332:  Followed 
and  approved,  State  v,  Marlow,  15  Ohio  St.  114;  see  Ewing  v.  Filley,  43  Pa. 
St.  386;  Lamb  v.  Lynd,  44  Pa.  St.  336.  Ellyson,  ex  parte,  20  Gratt.(Va.)  10, 
29,  1870,  commenting  on  Commonwealth  v.  Garrigues,  supra.  Function 
and  powers  of  common  council  as  election  canvassers.  Morgan  v.  Quacken- 
bush,  22  Barb.  72.  A  city  council,  under  authority  "  to  canvass  returns 
and  determine  and  declare  the  result  "  of  elections  to  municipal  offices,  ex- 
hausts its  power  when  it  has  once  legally  canvassed  the  returns  and  declared 
the  result,  and  it  cannot,  at  a  subsequent  meeting,  make  a  re-canvass  and 
reverse  its  prior  determination.  Hadley  v.  Mayor,  33  N.  Y.  603,  1865.  The 
rule  stated  in  the  text,  that  the  original  or  superintending  jurisdiction  of 
the  superior  courts  should  not  be  held  to  be  taken  away  by  any  language 
which  does  not  expressly,  or  by  unequivocal  implication,  show  this  to  have 
been  the*  legislative  intention,  is  a  salutary  one,  but  seems,  in  some  cases, 
not  to  have  been  very  strictly  observed.  In  Texas,  where  the  statute  con- 
ferred upon  the  County  Court  the  power  to  determine  contested  elections  of 
county  officers,  and  gave  no  right  to  appeal,  it  was  considered  to  be  the 
policy  of  the  statute  to  secure  an  early  determination  of  such  disputes,  and 
it  was  held  that  the  judgment  of  the  County  Court  coald  not  be  revised 
either  upon  appeal  or  certiorari,  and  was  final.  O'Docherty  v.  Archer,  9 
Texas,  295,  1852.     Post,  chap.  XXII. 

The  constitution  of  Ohio  requires  the  general  assembly  '*to  determine,  by 
law,  before  what  authority,  and  in  what  manner,  the  trial  of  contested 
elections  shall  be  conducted,"  and  accordingly  a  specific  mode  of  contesting 
elections  in  that  state  was  provided  by  statute;  and  this  mode  was  held  to 
exclude  the  common  law  mode  by  proceedings  in  quo  warranto,  and  the  re- 
sult to  bind  the  state  as  well  as  individuals.  State  v.  Marlow,  15  Ohio  St. 
114,  1864. 

In  South  Carolina  it  was  held,  where  the  legislature  had  authorized  man- 
agers of  elections  "  to  hear  and  determine "  cases  of  contested  elections, 
without  making  any  provision  for  an  appeal,  or  any  reference  in  the  act  to 
proceedings  by  quo  warranto  that  their  decision  was,  without  any  express 
statutory  declaration  to  that  effect,  final  and  conclusive,  and  that  courts  had 
no  control  over  it.  Grier  v.  Schackelford,  3  Brev.  (South  Car.)  491,  1814 
(Nott,  J.,  dissenting);  followed  in  the  State  v.  Deliesseline,  1  McCord, 
(South  Car.)  52,  1821  (two  judges  dissenting).  See  State  v.  Huggins,  Harper 
Law,  94,  1824.  But  note  remarks  of  Eoans,  J.,  in  State  v.  Cockrell,  2  Rich. 
(South  Car.)  Law,  6,  who,  speaking  of  the  subsequent  act  of  1839  (requiring 
the  managers  to  hear  and  determine  the  validity  of  the  election,  and  pro- 
viding that  their  "decisions  shall  be  final"),  says:  "  I  take  it  to  be  clear 
that  the  validity  of  an  election,  in  all  cases,  must  [under  the  act],  in  the 
first  instance,  be  decided  by  the  court  of  managers  duly  authorized  accord- 


Ch.  IX.]     CREATION    AND    APPOINTMENT    OF    OFFICERS.     267 


Power  io  Create  and  Appoint  Municipal  Officers. 

§  14B.  At  common  law,  municipal  corporations  may 
appoint  officers,  but  only  such  as  the  nature  of  their  consti- 
tution requires.  The  right  of  electing  such  officers  as  they 
are  authorized  to  have  is  incidental  to  every  corporation, 
and  need  not  be  conferred  by  charter.  The  power  of  ap- 
pointing officers  is,  at  common  law,  to  be  exercised  by  the 
corporation  at  large,  and  not  by  any  select  body,  unless  it 
\b  so  provided  in  the  charter.  The  powers  of  corporate  offi- 
cers proper,  at  common  law,  are  very  limited,  extending 
only  to  the  administration  of  the  by-laws  and  charter  regn 
lations  of  the  corporation.1 

§  146.     In  this  country  the  charter  or  constitution  of  the 

ing  to  law.  All  questions,  whether  of  law  or  fact,  must  be  submitted  to 
this  tribunal.  Their  decisions,  on  questions  of  fact,  must  necessarily  be 
final,  as  no  appeal  is  given ;  but  I  do  not  mean  to  say  that  their  errors  of 
law  may  not  be  corrected  by  certiorari,  or  such  of  the  prerogative  writs  aa 
may  be  best  suited  to  the  case."  Accordingly,  where  an  election,  within 
the  act,  had  not  been  contested  before  the  managers,  the  court  refused 
leave  to  file  an  information  in  the  nature  of  a  quo  warranto.  It  was  after- 
wards stated,  by  a  distinguished  judge  in  that  state,  that  the  scrutiny  of 
municipal  elections,  as  an  incidental  power,  belongs,  in  the  first  place  to 
the  city  council,  and  if  they  abuse  that  power,  the  correction  of  that  abuse 
devolves  upon  the  courts  by  information  in  the  nature  of  a  quo  warranto. 
Per  O'Neall,  J.,  in  State  v.  Schmierie,  5  Rich.  Law  (South  Car.)  299,  301, 
1852  {Quo.  War.  to  test  validity  of  defendant's  election  as  mayor  of  Charles- 
ton). S.  P.  Johnson  v.  Charleston,  IBay  (South  Car.)  441,  1795.  But  the 
city  council,  in  order  to  determine  a  contest  for  a  municipal  office,  cannot 
swear  the  individual  voters  to  compel  them  to  declare  for  whom  they  voted. 
This  is  an  inquisitorial  power  unknown  to  the  principles  of  our  government, 
and  of  dangerous  tendency.  lb.  See,  also,  People  v.  Pease,  2?  N.  Y.  81; 
People  v.  Cicotte,  16  Mich.  283;  Cooley  Const.  Lim.  604-606.  Election 
contests  for  office  will  not  be  determined  on  habeas  corpus.  Ex  parte  Strahl, 
16  Iowa,  369;  nor,  in  general,  on  bill  in  equity.  Hagner  v.  Heybergcr.  7 
Watts  &  S.  104;  but  see  Kerr  v.  Trego,  47  Pa.  St.  292.  Post,  sec.  213. 
Hughes  v.  Parker,  20  N.  H.  58;  Cochran  v.  McCleary,  22  Iowa,  75,  1867, 
and  chapter  on  Corporate  Meetings,  post.  But  as  to  county  seat  contest, 
where  fraud  is  alleged,  see  Brown  v.  Smith,  46  111.  See,  also,  chap.  XXII. 
fost. 

1  Wide.  234,  pi.  598 ;  lb.  297,  pi.  767 ;  lb.  298,  pi.  769 ;  Glover,  220  ; 
Vintners  v.  Paasey,  1  Burr.  237 ;  Hasting's  Case,  1  Mod.  24 ;  Rex  t.  Barnard, 
Comb.  416. 


268  MUNICIPAL    CORPORATIONS.  [Ch.  IX 

corporation  usually  provides  with  care  as  to  all  the  prin- 
cipal officers,  such  as  mayor,  aldermen,  marshal,  clerk, 
treasurer,  and  the  like,  and  prescribes  their  various  duties. 
This  leaves  but  little  necessity  or  room  for  the  exercise  of 
any  implied  power  to  create  other  offices  and  appoint  other 
officers.1  It  is  supposed,  however,  when  not  in  contraven- 
tion of  the  charter,  that  municipal  corporations  may,  to  a 
limited  extent,  have  an  incidental  right  to  create  certain 
minor  offices  of  a  ministerial  or  executive  nature.  Thus,  if 
power  be  conferred  to  provide  for  the  health  of  the  inhabit- 
ants, this  would  give  the  corporation  the  right  to  pass  ordi- 
nances to  secure  this  end,  and  the  execution  of  such  ordi- 
nances might  be  committed  to  a  health  officer,  although  no 
such  officer  be  specifically  named  in  the  organic  act,  if  this 
course  would  not  conflict  with  any  of  its  provisions.  But 
the  power  to  create  offices  even  of  this  character  would  be 
limited  to  such  as  the  nature  of  the  duties  devolved  on  the 
corporation  naturally  and  reasonably  required. 

The  provisions  of  the  charter  as  to  time  and  mode  of 
election,  the  appointment,  qualifications,  and  duration  of 

1  Where  it  was  manifest,  from  the  whole  tenor  of  a  city  charter,  that  it 
was  the  intention  of  the  legislature  itself  to  specify  therein  all  the  offices, 
and  designate  all  the  officers  to  be  elected  or  chosen,  and  to  regulate  the 
mode  of  appointment,  it  was  held  that  the  city  council  could  not,  by  virtue 
of  an  inherent  or  implied  power,  create  another  officer,  fix  his  term,  provide 
for  his  appointment,  and  clothe  him  with  the  powers  of  a  municipal  officer. 
Hoboken  v.  Harrison,  1  Vroom  (N.  J.)  73,  1862.  It  is  said,  in  the  opinion, 
that  the  power  to  create  municipal  officers  should  be  expressly  conferred. 
In  New  Jersey,  pound-keepers,  from  a  very  early  period,  had  been  public 
toicnship  officers,  elected  in  the  same  way  as  other  officers  of  the  township. 
Under  these  circumstances  it  was  held  that  a  municipal  corporation  could 
not,  without  express  authority  therefor,  establish  another  public  pound 
within  the  limits  of  the  township,  and  prescribe  regulations  and  fees  vari- 
ant from  those  prescribed  by  the  general  law;  and  it  was  further  held,  that 
the  office  of  pound-keeper  could  not  be  considered  as  one  essential  to  the 
business  of  the  corporation ;  nor  is  a  pound-keeper  one  of  those  subordi- 
nate officers,  which  all  municipal  corporations  may,  as  of  course,  appoint. 
It  was,  however,  admitted  by  the  court,  that  where  such  a  corporation  has 
power  to  do  an  act,  it  has  the  incidental  power  to  appoint  persons  to  carry 
it  into  effect.  White  v.  Tallman,  2  Dutch.  (N.  J.)  67,  1856.  Authority  to  a 
municipal  corporation  to  appoint  an  officer  was  inferred  from  the  frequent 
mention  of  the  office  and  its  duties  in  the  charter.  People  v.  Bedell,  2  Hill 
fN.  Y.)  196 ;  see,  also,  Field  v.  Girard  College,  54  Pa.  St.  233. 


Ch.  IX.l     CREATION    AND    APPOINTMENT     OF     OFFICERS.     269 

the  terms  of  officers,  must  be  strictly  observed.  Therefore, 
an  ordinance  which  makes  eligible  those  who,  by  the  charter, 
are  not  so,1  or  which  abridges  the  term  of  officers  as  fixed 
by  the  charter,  is  unauthorized  and  void." 

§  147.  Every  municipal  corporation  is  provided  with  an 
executive  head,  usually  styled  the  mayor.  In  the  chapter 
on  Corporate  Meetings  we  have  pointed  out  the  difference, 
in  some  respects,  between  the  mayor  of  an  old  corporation 
in  England  and  the  officer  known  by  that  name  in  this 
country.  -  In  both  countries  the  mayor  is  the  head  officer  or 
executive  magistrate  of  the  corporation  ;  but  with  us  it  is 
important  to  bear  in  mind  that  all  his  powers  and  duties 
depend  entirely  upon  the  provisions  of  the  charter  or  con- 
stituent act  of  the  corporation,  and  valid  by-laws  passed  in 
pursuance  thereof, — and  these  vary,  of  course,  in  different 
municipalities.  It  is  usually  made  his  duty,  however,  to 
see  that  municipal  ordinances  are  executed,  and  to  preside 
at  corporate  meetings  ;  and  he  is  frequently  expressly  de- 
clared to  be  a  member  of  the  council  or  local  legislative 
body.  Properly  and  primarily  his  duties  are  executive  and 
administrative,  and  not  judicial  or  legislative.  But  judicial 
duties  are  often  superadded  to  those  which  properly  apper- 
tain to  the  office  of  mayor,  and  he  is  invested  with  the 
authority  to  administer  not  only  the  ordinances  of  the  cor- 
poration, but  also,  judicially,  to  administer  the  laws  of  the 
state.8 

1  Rex  v.  Mayor  of  Weymouth,  7  Mod.  373;  Rex  v.  Bumstead,  2  B.&  Ad. 
699;  Rex  v.  Spencer,  3  Burr.  1827;  Rex  v.  Chitty,  5  Ad.  &  E.  609. 

5  Stadler  v.  Detroit,  13  Mich.  346,  1865;  Vason  v.  Augusta,  38  Geo.  542, 
1868.  Chapter  on  Ordinances,  post.  The  office  of  treasurer  of  a  municipal 
corporation  is  not  a  "civil  office"  within  the  meaning  of  the  provision  of 
the  constitution  excluding  the  clergy  from  ' '  holding  any  civil  office  in  this 
state,  or  from  being  a  member  of  the  legislature."  State  v.  Wilmington, 
3Harring.  (Del.)  294,  1840;  see  Commonwealth  v.  Dallas,  3  Yeates  (Pa.) 
300.  "Lucrative  offices,"  in  the  constitutional  sense,  defined  to  embrace 
county  recorder,  commissioner,  township  trustee,  and  supervisor.  Daily  v. 
State. 8  Blackf.  329;  Creighton  v.  Piper,  14  Ind.  182;  Howard  v.  Shoemaker, 
35  Tud.  111. 

•  Waldo  v.  Wallace,  12  Ind.  569,  1859,  and  growing  out  of  it,  see,  also, 
Gulick  v.  New,  14  11.  93,  1860;  Howard  v.  Shoemaker,  35  Ind.  Ill,  1871; 
Reynolds  v.  Baldwin,  1  La.  An.  162,  1846;  Muscatine  e.  Steck,  7  Iowa,  505; 
2  Jo.  220;  Ex  parte  Strahl,  16  Iowa,  369;  Shafer  v.  Mumma,  17  Md.  831; 


270  MUNICIPAL     CORPORATIONS.  [Ch.  IX 

§  148.  The  office  of  mayor  has  long  existed  in  Eng- 
land,1 and  many  of  its  general  features  have  been  adopted 

Slater  v.  Wood,  9  Bosw.  15.  Ante,  chap.  III.  Morrison  v.  McDonald,  21 
Maine,  550,  1842;  State  v.  Maynard,  14  111.  419;  Commonwealth  v.  Dallas, 
3  Yeates  (Pa.)  300,  1801;  Starr  v.  Wilmington,  3  Harring.  (Del.)  294, 
1839;  Prell  v.  McDonald,  7  Kansas,  426,  1871. 

Power  of  mayor,  in  his  official  name,  to  bring  suit  to  prevent  or  restrain 
violations  of  law  by  other  municipal  officers,  declared.  Genois,  Mayor,  &c. 
v.  Lockett,  13  La.  545,  1838.  But  qucere  ?  The  mayor  of  a  city  has  no  inci- 
dental power  to  execute  an  appeal  bond  for  the  corporation ;  and  such  a 
bond  was  regarded  as  not  even  incidental  to  the  power  of  taking  an  appeal, 
but  must  be  authorized  by  the  council.  Baltimore  v.  Railroad  Co.,  21  Md. 
50,  1863.  A  precept  to  collect  a  street  assessment,  signed  by  a  member  of 
the  council  acting  temporarily  as  president  thereof,  is  void,  when  the  stat- 
ute requires  the  signature  of  the  mayor.  Jeffersonville  v.  Patterson,  32  Ind. 
140,  1869.  Injunction  will  lie  to  restrain  a  sale  on  such,  a  precept.  lb. 
See  chapter  on  Remedies  against  Illegal  Corporate  Acts,  post. 

As  to  nature  and  extent  of  anthority  of  mayors  and  other  civil  officers  to 
employ  force  for  the  prevention  or  suppression  of  mobs,  riots,  &c. :  See  Ela 
v.  Smith,  5  Gray,  121,  1855,  arising  out  of  the  arrest  of  Anthony  Burns  as  a 
fugitive  slave.  Power  of  mayor  to  order  demolition  of  works  and  buildings 
in.  public  places:  Henderson  v.  Mayor,  3  La.  563.  Mayor  may  sanction  an 
ordinance  passed  by  a  common  council,  whose  term  has  expired :  Elmen- 
dorf  v.  Ewen,  2  N.  Y.  Leg.  Obs.  85.  Notice  to  mayor  :  Nichols  v.  Boston,  98 
Mass.  39.  Police  and  executive  power  of  Mayor :  Shafer  v.  Mumma,  17  Md. 
S31 ;  Slater  v.  Wood,  9  Bosw.  15 ;  Pedrick  v.  Bailey,  12  Gray,  161  ;  Nichols  v. 
Boston,  98  Mass.  39.  Alderman  acting  as  mayor:  State  v.  Buffalo,  2  Hill, 
434.  Judicial  power  of  mayor:  See  Municipal  Courts,  post.  Prell  v.  Mc- 
Donald, 7  Kansas,  426;  Howards.  Shoemaker, 35  Ind.  Ill,  1871.  Presence 
and  functions  of  mayor  at  meetings  of  the  council  :  See  the  chapter  on 
Corporate  Meetings,  post. 

Liability  of  Mayor  in  Upper  Canada  to  private  actions  in  respect  to  his 
official  acts:  Fair  v.  Moore,  3  Upp.  Can.  C.  P.  484;  Moran  v.  Palmer,  13  11. 
450,  528.  Fraud  of  Mayor  restrained  and  relieved  against  :  Patterson  *. 
Bowes,  4  Grant,  170  ;  lb.  489.     Post,  sec.  730,  note. 

1  History  and  nature  of  office  of  Mayor,  consult  :  4  Jacob's  Law  Diet.  204 
265;  2  Toml.  Law  Diet.  540;  2  Bouv.  150.  Spelm.  Gloss.  "Mayor;"  Ela  v. 
Smith,  5  Gray  (Mass.)  521,  1855;  Achley's  Case,  4  Abb.  Pr.  Rep.  35,  1850: 
Cochran  v.  McCleary,  22  Iowa.  75,  8"2.  1*67;  Nichols  v.  Boston;  98  Mass.  39; 
Fletcher  v.  Lowell,  15  Gray,  103.  Ante,  sees.  9,  116;  post,  sees.  191.  198, 
209,  265,  358.  The  office  in  England  is  quite  ancient.  In  1204  King  John 
made  the  bailiff  of  King's  Lynn  a  mayor,  with  administrative  powers.  The 
title  was  a  common  one  as  early  as  the  time  of  Bracton. 

Mr.  Norton,  in  his  valuable  "  Commentaries  on  the  History,  Constitution, 
and  Chartered  Franchises  of  the  City  of  London,"  says  that  the  first  specie 
grant  of  the  mayoralty  to  the  city  of  London  was  made  by  King  John  in  » 


Ce  IX.]      CREATION    AND    APPOINTMENT    OF    OFFICERS.      271 

in  this  country.  In  a  former  page  suggestions  have  been 
made  in  favor  of  increasing  its  dignity  and  responsibility, 
as  a*  means  of  insuring  more  satisfactory  municipal  rule ; 
but  the  subject  is  not  sufficiently  connected  with  practical 
law  to  warrant  more  than  an  allusion  to  it  in  a  work  of  this 
character.1 

K  149.  The  office  of  a  Police  Officer  is  not  known  to 
the  common  law ;  it  is  created  by  statute,  and  such  an 
officer  has,  and  can  exercise,  only  such  powers  as  he  is  au- 
thorized to  do  by  the  legislature,  expressly  or  derivatively.' 

charter  dated  on  the  9th  day  of  May,  in  the  sixteenth  year  of  his  reign, 
A.  D.  1207.  This  charter  declares  that  the  king  has  granted  and  confirmed 
to  tne  barons  of  London  the  right  of  choosing  a  mayor  every  year,  and  at 
the  end  of  the  year  of  removing  him  and  substituting  another,  if  they  will, 
or  electing  the  same  again.  He  is  to  be  presented  to  the  king,  and  swear 
to  be  raithful  to  him.  The  use  of  the  word  confirmed,  in  this  charter,  shows 
that  the  name  and  officer  existed  .before.  The  first  civic  magistrate  had 
began  to  be  called  by  the  name  of  mayor  toward  the  end  of  the  reign  of 
his  predecessor,  Richard.  The  denomination  of  mayor,  it  is  said  on  the 
authority  of  legal  antiquaries,  can  be  traced  to  a  very  far  date  among  the 
German  and  French  nations  of  Europe.  The  chief  governor  of  the  town 
communities  which  arose  in  France  in  the  eleventh  century,  was  often  styled 
the  mayor.  It  is  a  matter  of  history,  that  in  France,  the  mayor  of  the  palace 
was  the  governor  of  Paris,  often  holding  sovereign  power,  and,  indeed,  in 
time,  usurping  it,  since  it  was  from  one  of  the  mayors  of  the  palace  that  the 
fanrl.y  of  Charlemagne  descended.  And  it  is  suggested  by  Mr.  Norton  that 
the  term  mayor,  familiar  to  the  Normans,  may  have  been  originally, 
though  remotely,  derived  from  the  same  source  :  Norton's  Com.  pp.  90, 
402,  403;  see,  also,  Pulling's  Laws,  Customs,  &c.  of  London,  chap.  II.  16  m. 

-  Ante,  chap.  I.  sec.  9,  and  notes. 

'  Commonwealth  v.  Dugan,  12  Met.  233,  1847;  Commonwealth  ©.Hast- 
ings. 9  Met.  259;  ante,  sees.  33,  34.  In  Massachusetts  they  are  peace 
officers,  and  a  person  who  assaults  or  obstructs  them  in  the  discharge  of 
their  duties,  is  indictable,  thought  they  have  not  been  sworn — the  statute 
not  requiring  this:  Buttrick  v.  Lowell,  1  Allen,  172;  Mitchell  v.  Rockland, 
51  Maine,  118,  122.  In  The  People  v.  Metropolitan  Police  Board,  10  N.  Y. 
188,  1859,  growing  out  of  the  act  to  establish  a  Metropolitan  Police  Dis- 
trict, it  was  decided  by  a  majority  of  the  Court  of  Appeals  that,  though 
the  office  was  a  new  one,  yet  the  mode  of  filling  it  not  being  provided  by 
,he  constitution,  it  was  in  the  power  of  the  legislature  to  confer  it  upon 
persons  'discharging  substantially  the  same  duties  within  a  more  limited 
territorial  jurisdiction,  and  to  dispense  with  an  oath  of  office.  See.  also, 
People  v.  Draper,  15  N.  Y.  532.  1857,  where  the  Court  of  Appeals  held  the 
Act  to  establish  a  Metropolitan  Police  District"  valid;  approved,  Metro- 


272  MUNICIPAL     CORPORATIONS.  |Ch.  EX. 

Where  police  officers  are,  by  statute,  invested  with  al' 
the  powers  of  constables,  as  conservators  of  the  peace,  this 
gives  them  authority  to  arrest,  upon  vieio,  intoxicated 
Dersons  while  guilty  of  disorderly  conduct,  or  other  persons 
violating  the  laws,  and  to  detain  them  until  they  can  be 
brought  before  a  magistrate.1  If  such  an  officer  releases 
an  intoxicated  person,  whom  he  had  arrested  while  con- 
ducting himself  in  a  disorderly  manner,  upon  his  promise 
to  go  directly  home,  he  may  lawfully  retake  him,  on  his 
going  into  a  bar-room  before  he  is  out  of  the  officer's  sighu 
and  such  arrest  is  justified,  whether  it  be  regarded  as  a  re- 

politan  Board  of  Health  v.  Heister,  37  N.  T.  661, 1868;  McDermott  v.  Metro- 
politan Police  Board,  5  Abb.  Pr.  422 ;  Police  Commissioners  v.  Louisville.  3 
Bush  (Ky.)  597,  1868;  ante,  sec.  33,  and  notes.  Extent  of  legislative  power 
and  control  over  appointment,  powers,  &c.  of  police,  health,  and  other  local 
officers:  Baltimore  v.  Board  of  Police  (Baltimore  Police  Act),  15  Md.  376, 
1859;  Metropolitan  Board  of  Health  v.  Heister,  37  N.  Y.  661,  1868;  Peoples. 
Hurlburt,  24  Mich.  44, 1871 ;  Police  Commissioners  v.  Louisville,  above  cited* 
ante,  sec.  33,  n.      Mode  of  compensation :  Worcester  v.  Walker,  9  Gray,  78. 

1  Taylor  v.  Strong,  3  Wend.  384,  1829;  Bacon  Ab.  Constable,  C. ;  Com- 
monwealth v.  Hastings,  9  Met.  259,  1843 ;  Prell  v.  McDonald,  7  Kansas,  426, 
1871.  As  to  power  of  constables  in  such  cases,  see  1  Hale  P.  C.  587; 
Hawkins  P.  C.  book  II.  chap.  XIII.  sec.  8.  Where  such  a  course  is  not 
repugnant  to  the  general  law  of  the  state,  the  proper  officers  of  a  municipal 
corporation  may  authorize  to  arrest,  without  warrant,  or  upon  view,  offenders 
who  violate  ordinances  in  the  presence  of  such  officers.  Bryan  v.  Bates,  15 
111.  87,  1853;  Main  v.  McCarty,  15  111.  442;  State  v.  Lafferty,  5  Harring. 
(Del.)  491.     Post,  sec.  347,  n. 

Power  to  a  city  corporation  to  make  ordinances  for  the  security,  or  good 
order,  or  government  of  the  place,  and  to  appoint  or  elect  officers  to  carry 
out  ordinances,  authorizes  the  appointment  of  city  guards,  or  police  officers, 
or  peace  officers,  and  such  officers  may  arrest,  without  a  warrant,  persons 
engaged  in  breaches  of  the  peace.  City  Council  v.  Payne,  2  Nott  &  McCord 
(South  Car.)  475,  1820.  A  city  council  may  authorize  arrests  upon  view, 
without  warrant,  for  violation  of  its  by-laws,  when  not  inconsistent  with 
the  general  statutes  or  policy  of  the  state.  White  v.  Kent,  11  Ohio  St.  550. 
1860;  Thomas  v.  Ashland,  12  lb.  127.  But  not  otherwise.  Thus,  where 
the  city  charter  declared  all  by-laws  inconsistent  with  the  general  law  to  be 
void,  and  where  the  general  law  did  not  allow  an  officer  to  arrest  for  a  mie- 
demeanor  not  committed  in  his  presence,  without  a  warrant,  it  was  held 
that  an  ordinance  authorizing  police  officers  to  make  arrests,  without  a 
warrant,  for  violation  of  ordinances  not  committed  in  their  presence,  was 
void,  and  would  not  protect  the  officer  against  a  suit  for  trespass.  Pestex- 
ce.d  v.  Vickers,  3  Coldw.  (Tenn.)  205,  1866 


Ch.  III.]     CREATION    AND    APPOINTMENT    OF    OFFICERS.      273 

caption  for  the  original  purpose,  or  as  a  new  arrest  for  dis- 
orderly conduct  still  continuing.' 

§  150.  Charters  authorizing  municipal  officers  to  make 
arrests  upon  view,  and  without  process,  are  to  be  viewed  in 
connection  with  the  general  statutes  of  the  State,  and  being 
in  derogation  of  liberty,  are  strictly  construed ;  hence  an 
officer  making  such  an  arrest,  though  on  the  Sabbath  day, 
should  instead  of  imprisoning,  take,  without  unreasonable 
delay,  the  person  arrested  before  the  proper  tribunal  and 
prefer  a  complaint  against  him,  as  provided  by  the  statutes 
of  the  State.8 

§  151.  A  city  council  authorized  to  elect  certain  officers, 
may,  where  no  mode  of  election  is  prescribed,  appoint 
them  by  resolution,  and  is  not  bound  to  elect  them  by 
ballot  ;3  and  the  corporation  has  full  control,  unless  specially 
restricted,  over  all  offices  and  officers  existing  only  under 
by-laws.4    A  vote  of  an  authorized  committee  of  a  city, 

1  Commonwealth  v.  Hastings,  supra.  It  follows  that  an  obstruction 
offered  by  a  third  person,  to  the  officer  in  making  such  an  arrest,  would  be 
unjustifiable.     lb. 

2  Low  v.  Evans,  16  Ind.  486,  1868  (action  for  false  imprisonment) ;  Pow 
t>.  Becker,  3  Ind.  475,  1852;  Vandever  v.  Mattock,  3  Ind.  479  In  Low  v. 
Evans  it  was  held  that  there  was  no  authority  in  the  officer  making  the  ar- 
rest for  imprisoning  the  party  arrested  for  an  indefinite  time  (e.  g.,  from 
Sunday  until  the  next  day),  because  he  may  be  subject  to  a  penalty,  to  be 
recovered  in  a  suit  in  the  nature  of  an  action  of  debt. 

'  Low  v.  Commissioners  of  Pilotage,  R.  M.  Charlt.  (Geo.)  302,  1830,  per 
Law,  J.  Ante,  sec.  58.  Power  of  council  to  appoint,  and  when  it  may 
delegate  this  power  to  a  committee.  People  v.  Bedell,  2  Hill  (N.  Y.)  196; 
Commonwealth  v.  Pittsburg  (police  force),  14  Pa.  St.  177,  1850;  Wilder  v. 
Chicago,  26  111.  182;  Russell  v.  Chicago  (collectors),  22  111.  285;  ante,  sec.  60. 

4  As  to  plenary  power  and  control,  when  not  restricted,  of  a  municipal 
corporation  over  offices  and  officers  existing  only  under  ordinances,  see 
People  v.  Conover,  17  N.  Y.  64,  1858;  Waldraven  v.  Memphis  (right  to 
abolish  office),  4  Coldw.  (Tenn.)  431,  1867;  infra,  sec.  170.  Madison  v. 
Korbly,  32  Ind.  74,  79,  1869.  The  power  to  appoint  implies,  in  general, 
the  power  tcremove  the  appointees.  People  v.  Hill,  7  Cal.  97.  Thus,  a 
municipal  corporation  appointing  commissioners  in  cases  of  local  improve- 
ments, may  remove  them.  People  v.  Mayor,  &c.  of  New  York,  5  Barb.  43, 
1848.  But  in  South  Carolina,  see  Caulfield  v.  State,  1  S.  C.  461,  1869. 
The  exercise  of  the  power  to  appoint  to  office  is  an  executive,  not  a  legis 
tive  act.  Achley's  Case,  4  Abb.  Pr.  35,  1856. 
18 


274  MUNICIPAL     CORPORATIONS.  [Cn.  IX. 

electing  their  clerk  city  engineer  for  a  year  from  a  sub- 
sequent day,  dnly  recorded,  and  signed  by  him  as  their 
clerk,  is  sufficient  to  take  his  appointment  out  of  the  statute 
of  frauds.1 

§  152.  The  same  presumptions  which  are  applicable  to 
individuals  are,  in  general,  applicable  to  acts  of  corpora- 
tions. Thus,  if  a  person  acts  notoriously  as  the  officer  of  a 
corporation,  and  is  recognized  by  it  as  such  officer,  a  regular 
appointment  will  be  presumed,  and  his  acts  will  bind  the 
corporation,  although  no  written  proof  is  or  can  be  adduced 
of  his  appointment.8 

Oath  and  Official  Bond. 

§  153.  All  public  officers  are  usually  required  to  take 
an  oath  of  office,  and  those  entrusted  with  money  or  prop- 
erty are  also  generally  required  to  give  bond  and  sureties 
for  the  faithful  performance  of  their  duties.  In  England 
it  is  said  that  an  oath  of  office  cannot  be  required  to  be 
taken  by  a  by-law  when  none  is  required  by  the  charter.* 
But  in  this  country  the  oath  of  office  is,  in  substance,  only 
that  the  officer  will  support  the  constitution  and  faithfully 
perform  his  official  duties.  And  such  an  oath  may,  doubt- 
less, be  required,  by  ordinance,  to  be  taken  by  every  muni- 
Chase  v.  Lowell,  7  Gray,  33,  1856. 

2  Bank  of  United  States  v.  Dandridge,  12  WTieat.  (U.  S.)  64,  70,  where 
Mr.  Justice  Story  cites  many  cases,  establishing  the  principle  "  that  the 
acts  of  artificial  persons  afford  the  same  presumptions  as  the  acts  of  natural 
persons." 

3Rex«.  Dean,  &c,  1  Str.  539;  Glover,  305;  Willc.  133;  Grant,  76.  It 
is  the  settled  doctrine  of  the  Supreme  Court,  that  the  United  States,  being  a 
body  politic,  with  a  capacity  to  enter  into  contracts,  may,  within  the  sphere 
and  in  the  execution  of  its  appropriate  powers,  take  bonds  and  securities, 
which  are  not  prohibited  by  law,  though  such  bonds  and  securities  may  not 
have  been  prescribed  by  any  pre-existing  legislative  act.  These,  though 
voluntary, — that  is,  not  extorted  or  coerced, — if  taken  for  a  lawful  purpose 
and  upon  a  good  consideration,  are  valid.  United  States  v.  Tingey,  5  Pet. 
(U.  S.)  114,  128,  1831,  approved,  Same  v.  Linn,  15  lb.  290,  1841;  and  see 
Dugan  v.  United  States,  3  Wheat.  (U.  S.)  172;  United  States  v.  Bradley,  10 
Pet.  (U.  S.)  343.  Right  of  city  to  require  bond  of  indemnity  from  the 
owner,  who  proposes  to  excavate  sidewalk  to  make  cellars,  vaults,  or  im- 
provements.    McCarthy  v.  Chicago,  53  III.  38,  1870. 


Oh.  IX.]  OATH     AND     OFFICIAL     BOND.  275 

cipal  officer  before  entering  upon  his  office.  Statutes  re- 
quiring an  oath  of  office  and  bond  are  usually  directory  in 
their  nature  ;  and  unless  the  failure  to  take  the  oath  or  give 
the  bond  by  the  time  prescribed,  is  expressly  declared, 
ipso  facto,  to  vacate  the  office,  the  oath  may  be  taken  or 
the  bond  given  afterwards,  if  no  vacancy  has  been  de- 
clared.1 

§  154.  When  the  statute  requires  a  prescribed  oath  of 
office  before  any  person  elected  "shall  act  therein"  a 
person  cannot  justify  as  such  officer  unless  he  has  taken  an 
oath  in  substantial,  not  necessarily  literal,  compliance  with 
the  law.  Third  parties,  however,  acting  in  good  faith  with 
him  as  such  officer,  are  protected,  notwithstanding  his 
fail  are  to  take  the  requisite  oath.2 

;  Smith  v.  Cronkhite,  8  Ind.  134;  State  v.  Findley,  10  Ohio,  51,  59,  and 
cases  cited ;  State  v.  Porter  (failure  to  give  bond  by  city  marshal  in  time),  7 
Ind.  204 ;  Sprawl  v.  Laurence,  33  Ala.  674 ;  Bank  v.  Dandridge,  12  Wheat. 
«4;  United  States  v.  Le  Baron,  19  How.  73;  S.  0.,  4  Wall.  642;  Marbury  v. 
Madison,  1  Cranch.  137.'  A  town  may  lawfully  require  a  collector  of  taxes 
or  other  officer,  to  furnish  sureties  for  the  faithful  discharge  of  the  duties  of 
his  office.  This  power  is  incidental,  and  need  not  be  express.  If  the  per 
son  chosen  neglects,  or  is  unable,  to  furnish  sureties,  this  amounts  to  a  non- 
acceptance  of  the  trust,  although  he  has  taken  the  oath  of  office.  Morrell 
v.  Sylvester,  1  Greenl.  248.  While  it  is  the  duty  of  an  officer  to  perfect  his 
title  to  his  office  by  complying  with  the  directions  of  the  law  as  to  taking 
oath,  depositing  bonds,  &c;,  yet  his  failure  to  do  so  is  his  own  wrongful 
neglect,  and  is  no  defense  to  his  sureties  in  an  action  on  his  official  bond. 
State  v.  Toomer,  7  Rich.  (South  Car.)  Law,  216,  1854;  State  v.  Findley,  10 
Ohio,  51,  1840. 

A  city  council,  whose  duty  it  is  to  decide  upon  the  sufficiency  of  the 
sureties  of  a  city  officer,  cannot  refuse  to  do  so  or  postpone  its  decision  be- 
cause the  title  to  the  office  is  elsewhere  disputed;  and  a  mandamus  will  lie 
to  compel.it  to  act  upon  the  sufficiency  of  the  securities  offered.  Common- 
wealth v.  City  Council  of  Philadelphia,  7  Am.  Law  Reg.  (N.  S.)  362. 

2  Olney  v.  Pearce,  1  Rh.  Is.  292,  1850,  and  authorities  cited  by  Mr. 
Angell  in  note;  Riddle  v.  Bedford  County,  7  Serg.  &  Raw.  392;  Neale  v. 
Overseers,  5  Whart.  (Pa.)  538.  Where  an  officer,  before  acting,  is  required 
to  qualify  by  taking  an  oath  of  office,  he  has  no  legal  right,  until  he  quali- 
fies, to  recover  fees  of  an  incumbent  received  after  the  plaintiff 's  appoint 
ment  or  election,  and  before  he  qualifies.  Thompson  v.  Nicholson,  12  Rob. 
(La.)  326,  1845.     See  City  v.  Given,  60  Pa.  St.  136.     Post,  sec.  174. 

If  members  of  a  common  council,  who  are  required  by  the  charter  to  be 
sworn  before  they  enter  on  the  duties  of  their  office,  are  sworn  before  an 
officer  not  authorized  to  administer  the  oath,  they  are  still  officers  de  facto. 


276  MUNICIPAL     CORPORATIONS.  [Ch.  IX. 

§  155.  The  principal  is  well  settled,  that  official  bonds 
are  valid  if  the  condition  complies  substantially  with  the 
requirements  of  the  statute.  The  exact  form  prescribed  is 
not  essential  unless  made  so  by  the  charter  or  act.1  As 
such  bonds  are  intended  to  secure  the  public  the  courts  do 
not  favor  technical  defences.  Accordingly,  actions  have 
been  sustained  on  bonds,  not  required  by  law,  when  ex- 
ecuted voluntarily,  and  with  proper  conditions,  to  secure 
the  performance  of  official  duty.1  And  when  required  by 
law  bonds  are  good,  as  common  law  obligations,  though 
they  do  not  conform  to  the  statute,  if  they  contain  no  con- 
dition contrary  to  law.  In  such  case  the  obligor  voluntarily 
agrees  to  make  the  obligee  named  a  trustee  for  the  persons 
interested  in  the  due  performance  of  the  condition.8  Thus, 
an  action  may  be  maintained  on  a  bond  given  to  the  "  select- 
men" instead  of  to  the  "town,"  by  a  town  treasurer,  con- 
ditioned for  the  faithful  performance  of  his  duties.4 

and  a  tax  levied  by  them  is  not  invalid,  and  will  not  be  set  aside  even  in  a 
direct  proceeding.     State  v.  Perkins,  4  Zabr.  (N.  J.)  409,  1854. 

An  act  of  Congress  provided  that  paymasters  should,  "previous  to  enter- 
ing upon  the  duties  of  their  office,  give  good  and  sufficient  bonds,"  &c.  It  was 
held,  that  an  appointment  as  paymaster  was  complete  when  made  by  the 
president  and  confirmed  by  the  senate ;  that  the  giving  of  the  bond  was  a 
mere  ministerial  act  for  the  security  of  the  government,  and  not  a  condition 
precedent  to  his  authority  to  act  as  paymaster;  and  that  a  recital  in  the 
bond  of  the  appointment  estops  the  principal  and  sureties  to  deny  the  fact 
United  States  v.  Bradley,  10  Pet.  (U.  S.)  343,  1836;  and  see,  also,  United 
States  Bank  v.  Dandridge,  12  Wheat.  64. 

1  Allegheny  County  v.  Van  Campen,  3  Wend.  49,  1829;  People©.  Holmes, 
2  Wend.  281;  lb.  615;  Fellows  v.  Oilman,  4  Wend.  414;  Lawton  v.  Erwin, 
9  Wend.  233;  Cornell  v.  Barnes,  1  Denio,  35. 

3  Postmaster  General  v.  Rice,  Gilpin,  554 ;  Montville  v.  Haughton,  7 
Conn.  543 ;  Commonwealth  v.  Wolbert,  6  Binney,  292. 

'  3  Thomas  v.  White,  12  Mass.  369 ;  5  lb.   314 ;  Kavanaugh  v.  Sanders,  8 
Greenl.  442 ;  Sweetzer  v.  Hay,  2  Gray,  49,  and  cases  there  cited. 

4  Sweetzer  v.  Hay,  2  Gray,  49;  Horn  v.  Whittier,  6  N.  H.  88.  A  bond 
given  by  the  treasurer  of  a  county  for  the  faithful  performance  of  his  offi- 
cial duties,  to  the  board  of  supervisors  of  the  same  county,  is  a  good  and 
valid  bond,  notwithstanding  there  may  be  no  statute  requiring  one.  Super- 
visors v.  Coffinbury,  1  Mich.  355;  People  v.  Johr,  22  Mich.  461,  1871. 

Municipal  corporations  may  sue  on  official  bonds  of  public  officers  when 
interested  therein.  State,  &c.  v.  Norwood,  12  Md.  177,  1858.  In  an  action 
on  the  official  bond  of   an  officer  appointed  by  a  municipal  corporation, 


Ch.  EX.]  duration    of    OFFICIAL    TERM.  277 

Duration  of  Official  Term. 

%  156.  It  was  a  settled  rule  of  law  respecting  the  old 
corporations  in  England  that  the  office  of  the  mayor  or 
.)ther  head  officer  was  annual,  and  absolutely  expired  at 
the  end  of  .the  year  ;  and  that  without  an  express  clause  in 
the  charter,  he  could  not  hold  over  until  his  successsor  was 
provided.  The  right,  in  such  case,  to  hold  oner  did  not 
exist  by  implication,  and  was  not  an  incident  to  the  office.1 
In  some  charters,  however,  it  was  in  terms  provided  that 
the  mayor  or  other  chief  officer  though  elected  for  a  year, 
should  hold  until  his  successor  was  chosen.3  When  this 
right  existed  it  was  frequently  abused,  by  neglecting  to 
hold  an  election  on  the  charter  day,  by  which  means  the 
officer  continued  his  term.  It  was  this  abuse  that  gave  rise 
to  the  Statute  of  Anne,  which  enacted  "that  no  person  in 
such  annual  office  for  one  whole  }7ear,  should  be  capable  of 
being  chosen  into  the  same  office  for  the  year  immediately 
ensuing,"  and  imposed  a  fine  upon  every  such,  officer  who 
"should  voluntarily  and  unlawfully  obstruct  and  prevent 
the  choosing  of  another  person  to  succeed  into  such  office 
at  the  time  appointed  for  making  another  choice."*  Under 
the  Municipal  Corporations  Act  the  provision  is,  that  the 
mayor  shall  be  elected  each  year,  at  the  meeting  fixed  for 
the  ninth  of  November,  and  shall  "  continue  in  his  office 

eciting  the  appointment  of  the  principal  as  such  officer,  neither  he  nor  his 
sureties  can  set  up  the  invalidity  of  his  appointment  as  a  defence  to  an 
action  for  moneys  collected.  Hoboken  v.  Harrison,  1  Vroom  (N.  J.)  73; 
eiple  v.  Elizabeth,  3 Dutch.  407.  Sureties  on  official  bond  of  de  facto  muni- 
cipal officer  are  liable  for  moneys  collected  by  him;  and  this  though  he  was 
an  officer  which,  in  point  of  fact,  the  corporation  could  not  create.  1 
Vroom,  73,  supra.  A  surety  in  an  official  bond  of  an  officer  whose  term  is 
limited  to  a  year,  is  not  liable  beyond  the  year,  though  the  officer  continues 
by  law  until  a  successor  is  provided.  Dover  v.  Twombly,  42  N.  H.  59, 
1860;  Clemsford  Co.  v.  Demorest,  7  Gray,  1,  1856;  Mayor  v.  Horn,  2  Har 
ring.  (Del.)  190,  1833. 

1  Rex  v.  Atkyns,  4  Mod.  12;  Rex».  Earle,  1  Str.  627;  Mayor  of  Durham's 
Case,  1  Sid.  33;  Rex  v.  Thornton,  4  East,  308;  Foot??.  Prowse,  1  Str.  625; 
8.  C,  3  Bro.  P.  C.  169;  Willc.  293;  Glover,  173. 

4  lb.;  Rex  v.  Phillips,  1  Str.  394. 

1  9  Anne,  chap.  XX.  sec.  8. 


278  MUNICIPAL    CORPORATIONS.  [Ch.  IX. 

for  one  whole  year,"1  and  by  an  amendment,  until  his  suc- 
cessor shall  have  accepted  the  office  of  mayor,  and  made 
and  subscribed  the  requisite  oath  ;2  and  subsequently,  the 
statute  of  Anne  above  mentioned  was  repealed,  as  being  no 
longer  necessary.3 

§  157.  At  common  law,  the  office  of  an  alderman,  jurat, 
capital  burgess,  or  other  member  of  a  select  body,  is  a 
franchise  for  life,  though  by  prescription  or  charter  it  may 
be  limited  to  a  definite  period,  but  the  office  was  so  much  in 
the  nature  of  a  freehold  that  there  was  an  implied  right  to 
hold  over,  unless  it  was  otherwise  provided.4  So  with 
respect  to  recorder,  town  clerk,  and  the  like  officers,  the 
duration  of  the  office  depended  upon  the  particular  charter, 
but  presumptively  it  was  not  limited,  and  their  offices  were 
so  much  in  the  nature  of  a  freehold  that  if  thpy  are  "  eligi- 
ble for  a  y^ar  "  and  are  constituted  in  general  terms,  they 
do  not  expire  with  the  year,  but  the  possessors  are  entitled 
to  hold  over  until  others  are  elected.  But  it  is  considered 
that  if  they  are  "eligible  for  a  year  only"  the  office  ipso 
facto  determines  on  the  expiration  of  the  year.6 

§  158.  In  this  country,  however,  a  public  office  is  not 
considered  as  being  in  the  nature  of  a  grant  or  contract, 
and  the  officer,  as  against  the  public,  has  no  freehold  or 
property  in  the  office  ;  and  it  is  almost  an  invariable  pro- 
vision of  law,  that  all  officers  shall  be  elected  or  appointed 
for  a  fixed  and  definite  period.  To  guard  against  lapses, 
sometimes  unavoidable,  the  provision  is  almost  always 
made  in  terms  that  the  officer  shall  hold  until  his  successor 
is  elected  and  qualified.  But  even  without  such  a  pro- 
vision, the  American  courts  have  not  adopted  the  strict  rule 
of  the  English  corporations,  which  disables  the  mayor  or 
chief  officer  from  holding  beyond  the  charter  or  election 

1  5  and  6  Will.  IV.  chap.  LXXVI.  sec.  49;  ante,  sec.  16,  and  notes;  Reg. 
9.  McGowan,  12  A.  &  E.  869. 

5  6  and  7  Will.  IV.  chap.  CV.  sec.  4. 

1  3  and  4  Vict.  chap.  XL VII. 

4  Rex  v.  Doncaster,  2  Ld.  Raym.  1564 ;  Foot  v.  Prowse,  supra. 

'  Willc.  296,  pi.  766 ;  Rex  v.  Durham,  10  Mod.  147 ;  Dighton's  Case,  1 
Vent.  82. 


Ch.  IX.]  DURATION     OP     OFFICIAL     TERM.  279 

day,  but  rather  the  analogy  of  the  other  corporate  officers, 
who  hold  over  until  their  successors  are  elected,  unless  the 
legislative  intent  to  the  contrary  be  manifested.1  Thus,  in 
Vermont  it  is  held. — there  being  no  statute  to  the  contrary, 
and  such  having  been  the  practice, — that  school  officers 
elected  at  the  annual  meeting  hold  over  until  others  are 
elected  at  another  annual  meeting,  whether  more  or  less 
than  a  year  from  the  time  of  their  election.* 

§  159.  The  law  on  this  subject  has  been  thus  stated  by 
a  learned  American  judge:  "Where,  in  the  charter  or 
organic  law  of  a  corporation,  there  is  an  express  or  implied 
restriction  upon  the  time  of  holding  office,  as  that  the 
officers  shall  be  annually  elected  on  a  particular  day,  and 
that  they  shall  hold  from  one  charter  (election)  day  till  the 
next,  or  that  they  shall  be  elected  '  for  the  year  ensuing 
only,'  in  such  case  they  cannot  hold  oner  beyond  the  next 
election  day  or  the  end  of  the  year."3     "But  where,  by  the 

1  People  v.  Rundle,  9  Johns.  147;  Slee  v.  Bloom,  5  Johns.  Ch.  366,  378; 
2  Kent  Com.  238 ;  Kelsey  v.  Wright,  1  Root  (Conn.)  83 ;  Smith  v.  Natchez 
Steamboat  Co.,  1  How.  (Miss.)  479;  Lynch  v.  Laffland,  4  Cow.  (Tenn.)  96; 
South  Bay,  &c.  Co.  v.  Gray,  30  Maine,  547 ;  Elmendorf  v.  Mayor,  &c.  of 
New  York,  25  "Wend.  693.    And  see  cases  infra. 

2  Chandler  v.  Bradish,  23  Vt.  416,  1851. 

"  The  better  opinion,"  says  Shmc,  C.  J.,  arguendo,  in  Overseers  of  Poor, 
&c.  v.  Sears,  22  Pick.  122,  130,  "  is,  that  town  officers  annually  chosen,  hold 
their  offices  until  others  are  chosen  and  qualified  in  their  place."  School 
District  v.  Atherton,  12  Met.  105,1846;  Dow«.  Bullock,  13  Gray,  136,  1859. 
So  in  Illinois.  People  v.  Fairbury,  51  111.  149,  1869.  So  in  Connecticut,  an 
officer  elected  for  "the  year  ensuing"  is,  in  the  absence  of  any  other  re- 
strictive provision,  entitled  to  hold  beyond  the  year,  and  until  he  is  super- 
seded by  the  election  of  another  person  in  his  place.  McCall  v.  Byram 
Manuf.  Co.,  6  Conn.  428,  1827,  where  the  authorities  are  reviewed  and  com- 
mented on  by  Hosmer,  C.  J. ;  S.  P.  Cong.  Soc.  &c.  v.  Sperry,  10  Conn.  200; 
Weir  v.  Bush,  4  Litt.  (Ky.)  433,  where,  by  statute,  an  officer  holds  for  a 
given  term,  and  "until  his  successor  is  elected  and  qualified,"  he  con- 
tinues in  office  until  his  successor  is  duly  elected  and  qualified,  though  this 
(from  failure  to  elect,  or  from  other  causes),  be  after  the  expiration  of  the 
term.  Stewart  v.  State,  4  Ind.  396,  1853;  Tuley  v.  State,  1  lb.  500,  515; 
Ex  parte  Lawhorne,  18  Gratt.  (Va.)  85. 

3  Tuley  v.  State,  1  Ind.  (Cart.)  500,  502,  1849,  per  Perkins,  J. ;  King  v. 
Mayor,  &c,  6  Vin.  Abr.  296;  Corporation  of  Banbury,  10  Mod.  346;  Rex  v. 
Passmore.  3  Term  R.  199;  6  Petersd.  Abr.  738.  But  whether  a  provision 
merely  that  an  officer  shall  "  be  annually  elected   on  a  particular  day,"  ia 


280  MUNICIPAL     CORPORATIONS.  [Ch.  EX. 

constitution  of  the  corporation,  the  officers  are  elected  for  a 
term,  and  until  their  successors  are  elected  and  qualified,  or 
where  they  are  elected  'for  the  year  ensuing,'  and  the 
charter  or  organic  law  contains  no  restrictive  clause,  the 
officers  may  continue  to  hold  and  exercise  their  offices, 
after  the  expiration  of  the  year,  until  they  are  superseded 
by  the  election  of  other  persons  in  their  places."1 

§  160.  As  against  the  public,  however,  officers  cannot 
found  a  valid  title  or  right  to  hold  over  upon  their  own 
neglect  of  duty .  Therefore,  where  the  charter  made  it  the 
express  duty  of  the  trustees  in  office  to  give  notice  of,  and 
themselves  to  hold,  the  annual  elections,  it  was  held,  that 

an  implied  restriction  that  he  shall  not  hold  over,  see  the  cases  in  Vermont, 
Massachusetts,  New  York,  Illinois,  and  Connecticut,  above  cited.  The 
■weight  of  authority  in  this  country  is  the  other  way.  Where  a  city  charter 
gave  the  mayor  power  to  hold  until  his  successor  was  elected  and  qualified, 
but  denied  this  power  to  the  members  of  the  city  couucil  by  providing  that 
they  should  be  elected  for  a  specified  term,  "  and  no  longer,"  and  that  theii 
seats  should  be  vacated  at  the  end  of  such  term,  they  cannot  hold  over, 
and  their  action,  after  the  time  thus  fixed,  is  void,  and  does  not  bind  the 
corporation.  Louisville  v.  Higdon,  2  Met.  (Ky.)  52G,  1859.  When  the  law 
is  silent  as  to  the  term,  but  requires  an  election  to  be  held  every  two  years, 
an  officer  holds  over  until  his  successor  is  provided.  Cordiell  v.  Frizeell, 
1  Nevada,  130. 

1  Per  Perkins,  J.,  Tuley  v.  State,  1  Ind.  (Cart.)  500,  502,  1849  (action  on 
official  bond  against  sureties).  Foots;.  Prowse,  Str.  625;  Queen  a.  Durham, 
10  Mod.  146;  King  v.  Lisle,  Andrews,  163;  McCall  v.  Manufacturing  Com- 
pany, 6  Conn.  428;  9  lb.  536;  10  lb.  200;  17  lb.  588;  Kelsey  v.  Wright, 
1  Root,  83;  Weir  v.  Bush,  4  Litt.  (Ky.)  429;  People  v.  Runkle,  9  Johns.  147; 
Vernon  Society  v.  Hills,  6  Cow.  23;  Slee  v.  Bloom,  5  Johns.  Ch.  366;  Pender 
v.  King,  6  Vin.  Abr.  296;  2  Kent  Com.  295,  note  b;  Hicks  v.  Launcelot,  1 
Rol.  Abr.  513;  Bank  v.  Petway,  3  Humph.  (Tenn.)  522;  Stewart  v.  State,  4 
Ind.  396 ;  Rex  v.  Poole,  Cas.  Temp.  Hardw.  23,  and  Phillips  v.  Wickham,  1 
Paige  Ch.  590,  were  considered  to  have  a  contrary  bearing.  It  was  decided, 
in  Beck?;.  Hanscom,  9  Fost.  (N.  H.)  213,  222,  1854,  that  where  the  charter 
or  incorporating  act  made  no  provision  for  the  continuance  of  corporate 
officers  in  office  after  the  expiration  of  the  term  for  which  they  were  elected, 
they  could  not  hold  over  until  others  should  be  chosen  and  qualified; 
citing  the  opinion  of  Chancellor  Walworth,  in  Phillips  v.  Wickham,  1  Paige, 
590;  but  admitting  that  the  People  v.  Runkle,  9  Johns.  147,  and  Trustees  v. 
Hills,  6  Cow.  23,  held  a  different  view.  In  People  v.  Tieman,  8  Abb.  Pr. 
359;  S.  O.j  30  Barb.  193,  the  Supreme  Court,  at  special  term,  denied  that  the 
officer  himself  could  hold  over  unless  authorized  by  statute,  though  to  pro- 
tect the  public  his  acts  are  sustained.     Cocke  v.  Halsey,  16  Pet.  71. 


Ch.  IX.]  VACANCIES    IN    MUNICIPAL     OFFICES.  281 

if  they  omitted  to  discharge  this  duty,  though  inadvertently, 
in  consequence  of  which  omission  there  was  and  could  be 
no  election,  that  they  were  not  entitled  to  hold  over,  al- 
though by  the  charter  it  was  provided  that  they  should 
continue  in  office  until  a  new  election  should  be  made  and 
their  successors  should  qualify.1 

Vacancies  in  Municipal  Offices. 

§  161.  At  common  law  there  must  be  a  vacancy  in  the 
office  existing  at  the  time  of  the  election;  "for  one  can- 
not," says  Mr.  Willcock,  "be  elected  to  a  corporate  office 
in  reversion."2  And  the  same  doctrine  has  been  recognized 
in  this  country,  and  a  vacancy  must  exist  before  an  election 
to  fill  it  can  be  ordered,3  and  an  election  to  fill  an  anticipated 
vacancy  is  not  valid  unless  expressly  authorized  by  the  char- 
ter or  statute. 4  Elections,  however,  in  advance  of  the  expira- 
tion of  the  regular  term  of  the  iocumbent  of  an  office,  are  al- 
ways provided  for  and  held,  but  such  cases  are  not  elections  to 
vacancies  within  the  meaning  of  the  rule  under  consideration. 

1  People  v.  Bartlett,  6  Wend.  222,  1831.  In  such  a  case,  being  trustees 
de  facto,  their  acts  would  be  good.  And  their  title  would  also  be  good  ex- 
cept when  called  in  question  by  quo  warranto.  lb.;  Lynch  v.  Laffland,  4 
Coldw  (Tenn.)  96,  1867.  Validity  of  acts  of  officers  de  facto.  People  v. 
Stevens,  R  Hill  (N.  Y.)  616,  per  Bronson,  J.  ;  People  v.  Runkle,  9  Johns. 
147;  Trustees  v.  Hill,  7  Cow.  23;  Plymouth?!.  Painter,  17  Conn.  585;  Smith 
».  State,  19  lb.  493 ;  People  v.  Bartlett,  6  Wend.  422 ;  State  v.  Jacobs,  17 
Ohio,  143;  Hinton  v.  Lindsay,  20  Geo.  746.  Post,  sees.  214,  716. 
9  Willc.  Corp.  207,  pi.  526;  Hob.  150;  Skin.  45;  Glover,  216. 

3  Lindsey  v.  Luckett,  20  Texas,  516;  Biddies.  Willard,  10  Ind.  63,  1857; 
People  v.  Wetherell,  14  Mich.  48. 

4  Biddle  v.  Willard,  supra.  In  this  case  it  was  said,  that  a  resignation  to 
take  effect  at  a  fixed  future  time  may,  if  no  new  rights  have  attached,  be 
withdrawn,  even  after  acceptance,  by  the  consent  of  the  party  accepting; 
and  under  the  laws  of  that  state  it  was  held,  that  such  a  resignation  did  not 
create  a  vacancy  which  would  authorize  an  election  at  a  period  prior  to  the 
taking  effect  of  the  resignation. 

There  is  no  technical  or  peculiar  meaning  to  the  word  "  vacant,"  as  used 
in  the  constitution.  It  means  empty,  unoccupied  ;  as  applied  to  an  office, 
without  an  incumbent.  There  is  no  basis  for  the  distinction  urged,  that  it 
applies  only  to  offices  vacated  by  death,  resignation  or  otherwise.  An  ex- 
isting office,  without  an  incumbent,  is  vacant,  whether  it  be  a  new  or  an  old 
one.  Per  Stuart,  J.,  Stocking  v.  State  ("vacancy  in  new  judicial  circuit),  7 
Ind.  326,  1855;  followed,  Collins  v.  State,  8  lb.  344,  1856- 


•282  MUNICIPAL    CORPORATIONS.  [Ch.  IX. 


Refusal  to  Serve  in  Office. 

§  162.  It  is  an  established  common  law  principle,  that 
since  a  municipal  corporation  is  entitled  to  the  official 
service  of  its  eligible  members,  it  may,  by  virtue  of  its  in- 
herent -or  incidental  power,  pass  a  by-law  imposing  a 
pecuniary  penalty  upon  such  as  refuse,  without  legal  ex- 
cuse, an  office  to  which  they  have  been  duly  elected.1  The 
ground  of  this  doctrine  is  clearly  set  forth  by  Lord  Holt  iu 
Vanacker  s  Case,  and  although  all  of  his  reasoning  is  not 
applicable  to  our  American  municipal  corporations,  still  it 
is  believed  that  under  the  usual  general  welfare  clause,  or 
under  their  incidental  power  to  pass  reasonable  and  neces- 
sary by-laws,  they  would  be  authorized,  where  such  an 
ordinance  did  not  contravene  the  charter  or  statute,  or 
public  legislative  policy  respecting  offices,  to  impose  a 
reasonable  tine  for  refusing  corporate  offices.  In  this 
country,  however,  offices  have  not  usually  been  regarded  as 
burdens  to  be  avoided,  but  rather,  as  distinctions  to  be 
coveted,  and  hence  there  has  been  little  occasion  to  call  into 

1  City  of  London  v.  Vanacker,  1  Ld.  Raym.  496;  S.  C,  Carth.  482;  S.  C, 
12  Mod.  272;  1  Salk.  142;  Rex  v.  Bower,"  2  Dowl.  &  R.  761,  842;  S.  C,  1 
Barn.  &  Cress.  587  ;  Vintners'  Company  v.  Passey,  1  Burr.  239 ;  Willc.  230 ; 
Glover,  181;  Grant,  211.  If  of  a  public  and  magisterial  nature,  the  penalty 
for  refusal  may  be  imposed,  though  the  person  be  also  liable  to  be  punished 
by  indictment,  or,  in  the  disrcetion  of  the  court,  by  criminal  information. 
London  v.  Vanacker,  1  Ld.  Raym.  499;  Rex  a.  Grosvenor,  1  "Wils.  18;  S.  C, 
2  Str.  1193;  Rex  v.  Hungerford,  11  Mod.  132,  142;  Rex  v.  Woodrow,  2  Term 
R.  732;  Bex  v.  Whitwell,  5  Term  R.  86;  Rex  v.  Leyland,  3  M.  &  S.  184. 
The  Municipal  Corporations  Act  (5  and  6  Will.  IV.  chap.  LXXVI.  sec. 
51)  requires  every  qualified  person  elected  to  the  office  of  alderman,  coun- 
cillor, auditor,  or  assessor,  or  mayor,  to  accept  the  office  or  pay  a  fine  to 
the  borough  fund.  The  refusal  to  take  the  requisite  oaths  is  a  refusal  of 
the  office.  Exon  v.  Starre,  2  Show.  159.  As  there  is  a  common  law  duty  to 
serve  in  an  office  to  which  a  person  has  been  duly  elected,  this  duty  may,  if 
the  office  be  sufficiently  important,  be  enforced  by  mandamus,  and  the  pay- 
ment of  the  fine  is  not  in  lieu  of  service  unless  the  statute  or  by-law  release 
him  from  service  by  treating  the  penalty  as  compensation.  Rex  v.  Bower, 
1  Barn.  &  Cress.  585;  S.  C,  2  Dowl.  &  R.  842  ;  Rex  ».  Leland,  3  Maule  & 
Sel.  185;  Rex  v.  Woodrow,  2  Term  R.  731.  Post,  sec.  667.  By  the  above 
mentioned  provision  of  the  Municipal  Corporations  Act,  the  fine  is  in  lieu 
of  the  acceptance  of  the  office.     Grant  on  Corp.  222. 


Ch.  IX.]  RESIGNATION     OF    MUNICIPAL     OFFICES.  283 

exercise  the  power  of  the  courts,  or  to  test  the  authority  of 
the  corporations,  to  enforce  the  undertaking  of  their  offices. 
If,  under  the  charter  or  statute,  an  officer  has  the  right  to 
resign  or  lay  down  his  office  at  pleasure,  the  authority  to 
impose  a  fine  for  refusing  to  serve  would  probably  not  exist.1 

Resignation  of  Municipal  Offices. 

§  163.  An  office  must  be  resigned  either  (first)  express- 
ly, or  (second)  by  implication.2  If  the  charter  prescribes 
the  mode  in  which  the  resignation  is  to  be  made,  that  mode 
should,  of  course,  be  complied  with.8  Acceptance  by  the 
corporation  is,  at  common  law,  necessary  to  a  consumma- 
tion of  the  resignation,  and  until  acceptance  by  proper  au- 
thority, the  tender  or  offer  to  resign  is  revocable.4  The 
right  to  accept  a  resignation  is  a  power  incidental  to  every 
corporation.5  It  is  also  a  common  law  principle  that  the 
right  to  accept  the  resignation  of  an  officer  is  incidental  to 
the  power  of  appointing  him.6     If  no  particular  mode  is 

1  See  Willc.  133,  pi.  308;  Grant,  221,  222;  Gates  v.  Delaware  County,  12 
Iowa,  405 ;  United  States  v.  "Wright,  1  McLean,  509 ;  State,  &c.  v.  Ferguson, 
31  N.  J.  (2  Vrooru)  107. 

s  Regents  of  University  v.  Williams,  9  Gill  &  J.  (Md.)  365,  422,  1838; 
Willc.  132,  238;  Grant,  268,  246,  note  e;  lb.  221,  222. 

3  Willc.  239;  Rex  v.  Hughes,  5  Barn.  &  Cress.  886,  896;  Rex  v.  Mayor  of 
Ripon,  1  Ld.  Raym.  563 ;  Rex  v.  Payne,  2  Chitty,  366 ;  Reg.  v.  Morton,  4 
Q.  B.  146. 

4  Rex  v.  Lane,  2  Ld.  Raym.  1304;  Rex  v.  Ripon,  supra  ;  Hazard's  Case, 
2  Rol.  11;  Jencing's  Case,  12  Mod.  402;  Rex  v.  Patteson,  4  B.  &  Ad.  9 ;  1 
Nev.  &  Mann.  612.  The  acceptance  may  be  by  entry  in  books,  by  vote,  or 
resolution,  or  by  treating  the  place  as  vacant  and  electing  another  to  fill  it, 
or  ordering  an  election  if  to  be  filled  by  a  popular  vote.  Van  Orsdall  v. 
Hazard,  3  Hill  (N.  Y.)  243;  State  v.  Ancker,  2  Rich.  (South  Car.)  245.  One 
elected  to  an  office  cannot  resign  it  before  he  has  qualified  and  become  an 
incumbent  of  it.     Miller  v.  Supervisors,  &c,  25  Cal.  93 ;  Willc.  236. 

6  Rex  v.  Tidderley,  1  Sid.  14;  Hazard's  Case,  supra.  The  "common 
council  "  may  regulate  resignations  by  by-laws,  and  it  may  accept  resigna- 
tions, as  it  represents  the  corporation  at  large.  Rawlinson  (5th  ed.)  317, 
note;  Staniland  v.  Hopkins,  9  M.  &  W.  178;  Willc.  240,  pi.  615. 

6  Van  Orsdall  v.  Hazard,  3  Hill  (N.  T.),  243;  asserting,  arguendo,  the  in- 
cidental power  of  municipal  corporations,  as  such,  to  accept  resignations, 
and  approving  the  opinion  of  Mr.  Willcock  (Munic.  Corp.  240).  who  ob 
serves,  respecting  the  cases  on  this  subject:    "I  presume  that  a  right  tc 


284  MUNICIPAL    CORPORATIONS.  [Ch.  DC 

prescribed,  neither  the  resignation  or  acceptance  thereof 
need  be  in  writing,  or  in  any  form  of  words. ' 

§  164.  An  office  may  be  impliedly  resigned  or  vacated 
by  the  incumbent  being  elected  to  and  accepting  an  incom- 
patible office.  The  rule,  says  Parke,  J.,  in  a  leading  Eng- 
lish case  on  this  subject,  that  where  two  offices  are  incom- 
patible they  cannot  be  held  together,  is  founded  on  the 
plainest  principles  of  public  policy,  and  has  obtained  from 
very  early  times.8  The  principle  applies  not  only  where 
the  second  office  is  the  superior  and  more  important  one, 
but  also  where  it  is  not-.9  The  rule  has  been  generally 
stated  in  broad  and  unqualified  terms,  that  the  acceptance 
of  the  incompatible  office  by  whomsoever  the  appointment 
or  election  might  be  made,  absolutely  determined  the 
original  office,  leaving  no  shadow  of  title  in  the  possessor, 
whose  successor  may  be  at  once  elected  or  appointed,  neither 
quo  warranto  nor  amotion  being  necessary.4 

§  165.  The  doctrine  just  stated  is  undoubtedly  true 
where  the  acceptance  of  the  second  office  is  made  by  or 
with  the  privity  of  that  authority  which  has  the  power  to 
accept  the  surrender  of  the  first  or  to  amove  from  it ;  but 
"  such  acceptance  does  not  operate  as  an  absolute  avoidance 
in  cases  where  a  person  cannot  divest  himself  of  an  office 
by  his  own  mere  act,  but  requires  the  concurrence  of  another 

accept  a  resignation  passes  incidentally  "with  a  right  to  elect."  See,  also, 
Rex  v.  Tidderley,  1  Sid.  14,  per  Hale,  Ch.  B. ;  Jenning's  Case,  12  Mod.  402; 
Taylor's  Case,  Poph.  133. 

1  Same  authorities;  and  see,  also,  Rex  v.  Ripon,  1  Ld.  Raym.  563;  S.  C, 
2  Salk.  433;  Regina  v.  Lane,  1  Ld.  Raym.  1304;  Jenning's  Case,  12  Mod. 
402 ;  Regina  v.  Gloucester,  Holt  R.  450  ;  Van  Orsdall  v.  Hazard,  3  Hill  (N. 
Y.)  243,  218;  State  v.  Allen,  2l  Ind.  516,  1863;  People  v.  Police  Board,  26 
N.  Y.  316;  McCunn's  Case,  19  lb.  188,  distinguished. 

2  Per  Parke,  J.,  Rex  v.  Patteson,  4  Barn.  &  Adol.  9,  1832;  1  Nev.  & 
Mann.  612 ;  Regents  of  the  University  v.  Williams,  9  Gill  &  Johns,  (hid.) 
365,  1838;  1  Kyd,  369-375. 

3  Milward  v.  Thatcher,  2  Term  R.  87,  which  settled  this  point  conclu- 
sively;  Rex  v.  Trelawney,  3  Burr.  1615;  Gabriel  v.  Clarke,  Cro.  Car.  138; 
Hex  v.  Godwin,  Doug.  383,  note  22;  Willc.  240,  pi.  617;  Glover,  139. 

4  Gabriel  v.  Clark,  supra  ;  Verrior  v.  Sandwich,  1  Sid.  305 ;  Mihv  lrd  v, 
Thatcher,  supra;  Glover,  329;  Willc.  240,  pi. .617. 


Ch.  IX.]        RESIGNATION     OF    MUNICIPAL     OFFICES.  285 

authorit}'  to  his  resignation  or  amotion,  unless  that  au- 
thority is  privy  and  consenting  to  the  second  appoint- 
ment."1 If  one  holding  an  office  in  a  corporation  be  by 
that  corporation  elected  to  an  incompatible  office,  this,  of 
course,  is  a  consent  on  the  part  of  the  corporation  that  the 
first  office  be  vacated,  and  if  the  second  office  be  accepted, 
the  first  is  at  once  and  ipso  facto  determined.  But,  until 
acceptance,  the  former  office  is  not  vacated.3 

§  166.  The  rule  under  consideration  is  not  limited  to 
corporate  offices,  but  extends,  both  in  its  principle  and  ap- 
plication, to  all  public  offices.  Thus,  if  a  Judge  of  the 
Common  Pleas  accepts  an  appointment  to  the  King's  Bench. 
the  first  office  is  vacated,  since  it  is  the  duty  of  the  one  to 
correct  the  errors  of  the  other.3 

Whether  offices  are  incompatible  depends  upon  the 
charter  or  statute,  and  the  nature  of  the  duties  to  be  per- 
formed.*   The  same  man  cannot  be  judge  and  minister  in 

1  Parke,  J.,  Rex  v.  Patteson,  supra.  It  has  been  held  in  this  country, 
however,  that  an  incumbent  of  a  public  office  may  lay  it  down  at  his  pleas- 
ure, and  that  the  officer  to  whom  the  resignation,  by  law,  is  to  be  made 
cannot  forbid  it  or  refuse  it;  and  that  when  received  by  such  officer  it 
operates  to  vacate  the  office  resigned.  Gates  v.  Delaware  County,  12  Iowa, 
405 ;  United  States  v.  Wright,  1  McLean,  509.  See,  however,  State,  &c.  v. 
Ferguson,  31  N.  J.  (2  Vroom)  Law,  107 ;  Lewis  v.  Oliver,  4  Abb.  Pr.  R.  121 ; 
People  v.  Porter,  6  Cal.  26. 

2  lb.  Milward  v.  Thatcher,  supra;  Rex  v.  Pateman,  supra ;  Willc.  243, 
pi.  623;  Arkwright  v.  Cantrell,  7  Ad.  &  E.  565.  Acceptance  necessary :  see, 
also,  State  v.  Ferguson,  31  N.  J.  (2  Vroom)  Law,  107,  1864;  see  Lewis  v. 
Oliver,  4  Abb.  Pr.  121.  Acceptance  of  an  incompatible  office,  even  under  a 
void  election,  puts  an  end  to  the  first  office,  and  the  officer,  on  being  ousted 
from  the  second  office,  cannot  be  restored  to  the  first.  Rex  v.  Hughes,  5  B. 
&  C.  386 ;  Rex  v.  Bond,  6  D.  &  R.  333. 

•  Glover  on  Corp.  139. 

4  Milward  v.  Thatcher,  supra,  per  Buller,  J. ;  People  v.  Carrigue,  2  Hill 
(N.  T.)  93,  and  cases  cited ;  Staniland  v.  Hopkins,  9  M.  &  W.  178. 

Incompatibility  in  offices  exists  where  the  nature  and  duties  of  the  two 
offices  are  such  as  to  render  it  improper,  from  considerations  of  public  pol- 
icy, for  one  incumbent  to  retain  both.  It  does  not  necessarily  arise  when 
the  incumbent  places  himself,  for  the  time  being,  in  a  position  where  it  i8 
Impossible  for  him  to  discharge  the  duties  of  both  offices.  Bryan  v.  Cattell, 
15  Iowa,  538,  1864,  per  Wright,  C.  J. ;  and  accordingly  that  case  held  that  the 
office  of  district  attorney  "md  of  captain  in  the  volunteer  service  of  the 


286  MUNICIPAL     CORPORATIONS.  [Ch.  IX. 

the  same  court,  and  hence  the  offices  are  not  compatible.1 
Where  the  recorder  is  an  adviser  to  the  mayor,  the  two 
offices  cannot  be  held  together.2 

§  167.  An  office  may  be  vacated  by  abandonment* 
A  voluntary  enlistment  by  a  civil  officer  in  the  military 
service  of  the  United  States  for  three  years,  or  during  the 
war,  vacates  the  civil  office,  being  a  constructive  resignation 
by  abandonment.4  So  where  residence  within  the  corpora- 
tion is  necessary  in  order  to  be  eligible  to  hold  an  office, 
permanent  removal  from  the  municipality  may  undoubtedly 
be  taken  as  evincing  an  intention  to  resign,  and  as  an  im- 
plied resignation.6 

Compensation  of  Municipal  Officers. 

%  168.  We  have  had  occasion  to  discuss  the  complete 
supremacy  of  the  legislature  over  public  corporations, 
limited  only  by  express  constitutional  restraints.6  Its 
authority  over  public  offices,  which  are  created  or  author- 
ized solely  for  the  public  convenience,  is  equally  great,7  and 
may  be  conferred  upon  municipal  corporations  with  respect 
to  municipal  offices.  The  legislature,  in  the  absence  of  con- 
United  States  were  not  legally  incompatible.  Two  offices  are  incompatible 
where  the  holder  cannot,  in  every  instance,  discharge  the  duties  of  each. 
Per  Bailey,  J.,  Rex  v.  Tizzard,  17  Eng.  C.  L.  193. 

1  Poph.  28,  29;  1  Sid.  305;  2  Keb.  93;  Glover,  139. 

2  Willc.  241,  pi.  518;  Rex  v.  Marshall,  cited.  2  B.  &  A.  341.  Cleric  of  a 
school  district  and  collector  of  the  district  were  held  not  incompatible,  and 
the  same  person  may,  therefore,  be  appointed  to  both  offices,  there  being 
no  prohibition  in  the  act.  Howland  v.  Luce,  16  Johns.  135,  1819.  The 
offices  of  councilman  and  city  marshal  are  incompatible.  State  v.  Hoyt,  2 
Oregon,  246.  See,  generally,  as  to  incompatible  state  and  federal  offices : 
Resjublica  v.  Dallas,  3  Yeates  (Pa.)  316;  S.  C,  4  Dall.  229;  Commonwealth 
v.  Binns,  17  Serg.  &  Rawle,  219;  Commonwealth  v.  Ford,  5  Barr  (Pa.)   67. 

3  Willc.  238;  State  v.  Allen,  21  Ind.  516,  1863. 

«  State  v.  Allen,  21  Ind.  516,  1863.  But  see  Bryan  v.  Cattell,  15  Iowa, 
537. 

6  "Willc.  238.     Ante,  sec.  134. 

6  Ante,  chap.  IV 

1  Ante,  chap.  IV.  As  to  special  constitutional  restrictions,  ante,  sees. 
88,34. 


Cn.  IX.]       COMPENSATION     OF     MUNICIPAL     OFFICERS.         287 

stitutional  limitation,  may  create  and  abolish  offices,  add  to, 
or  lessen,  their  duties,  abridge  or  extend  the  term  of  office, 
and  increase,  diminish,  or  regulate,  the  compensation  of 
officers  at  its  pleasure.1 

§  169.  There  is  no  such  implied  obligation  on  the  part 
of  municipal  corporations,  and  no  such  relation  between 
them  and  officers  which  they  are  required  bylaw  to  elect,  as 
will  oblige  them  to  make  compensation  to  such  officers, 
unless  the  rigid  to  it  is  expressly  given  by  law,  ordinance, 
or  by  contract.2  Officers  of  a  municipal  corporation  are 
deemed  to  have  accepted  their  office  with  knowledge  of, 
and  with  reference  to,  the  provisions  of  the  charter  or  in- 
corporating statute  relating  to  the  services  which  they  may 
be  called  upon  to  render,  and  the  compensation  provided 
therefor.  Aside  from  these,  or  some  proper  by-lawT,  there 
is  no  implied  assumpsit  on  the  part  of  the  corporation  with 
respect  to  the  services  of  its  officers.  In  the  absence  of 
express  contract,  these  regulate  the  right  of  recovery,  and 
the  amount.  If  the  charter  or  by-laws  provide  for  a  pecu- 
liar mode  of  compensation,  as,  for  example,  to  a  city  sur- 
veyor, for  superintending  grading  of  streets,  by  an  assess- 
ment upon  the  property  owners,  the  city  is  not  liable  before 

1  Ante,  chap.  IV.  and  see,  also,  Conner  v.  Mayor,  &c.  of  New  York,  1 
Seld.  (N.  Y.)  285,  1851;  affirming  S.  C,  2  Sandf.  S.  C.  R.  355;  Warner  v. 
People,  7  Hill;  81;  2  Denio,  272;  People  v.  Morrell,  11  Wend.  563,  1839: 
Phillips  v.  Mayor,  &c.  of  New  York,  1  Hilt.  (Com.  PI.)  483;  Bryan  v.  Cattell, 
15  Iowa,  538,  553,  per  Wright,  C.  J. ;  Coffin  v.  State,  7  Ind.  157, 1855;  People 
v.  Mahaney,  13  Mich.  481;  Turpen  v.  County  Commrs.,  7  Ind.  172;  Oregon 
v.  Pyle,  1  Oregon,  149;  Bird  v.  Wasco  Co.,  3  Oregon,  282,  1871;  Cowdin  v. 
Huff,  10  Ind.  83;  Cooley  Const.  Lim.  276;  Butler  v.  Pensylvania,  10  How. 
402;  Smith  v.  New  York,  37  N.  Y.  518, 1868;  Swann  v.  Buck,  40  Miss.  268, 
1866.  While  the  office  is  continued,  and  the  officer  not  removed,  he  is 
entitled  to  salary.  Hoke  v.  Henderson,  4  Dev.  (N.  C.)  1 ;  Cotten  v.  Ellis, 
8  Jones  (N.  C.)  Law,  545. 

2  Sikes  v.  Hatfield,  13  Gray,  347,  1859;  Barton  v.  New  Orleans,  16  La.  An. 
317;  Gamier  v.  St.  Louis,  37  Mo.  554,  1866.  It  is  advisable  that  salaries 
should  be  fixed  by  ordinance,  and  not  voted  as  a  matter  of  grace  and  favor. 
Smith  v.  Commonwealth,  41  Pa.  St.  335.  Devoy  v.  New  York,  39  Barb.  169 ; 
Bladen  v.  Philadelphia,  60  Pa.  St.  464.  See  opinion  of  Thompson,  C.  J., 
Philadelphia  v.  Given,  lb.  136.  Municipal  corporations  are  not  liable  for 
services  performed  by  an  officer  under  an  unconstitutional  statute.  Meagher 
c.  County,  5  Nev.  244,  1869.     Post,  sec.  730. 


288  MUNICIPAL     CORPORATIONS.  [Ch.  IX 

it  collects  the  money,  if  it  makes  the  requisite  assessments, 
and  is  proceeding  with  proper  diligence  to  enforce  them  ' 

§  170.  A  municipal  corporation  may,  unless  restrained 
by  charter,  or  unless  the  employment  is  in  the  nature  of  a 
contract,  reduce  or  otherwise  regulate  the  salaries  and 
fees  of  its  officers,  according  to  its  view  of  expediency  and 
right.  Although,  an  officer  may  be  elected  or  appointed  for 
a  fixed  period,  yet  where  he  is  not  bound,  and  cannot  be 
compelled  to  serve  for  the  whole  time,  such  election  or  ap- 
pointment cannot  be  considered  a  contract  to  hire  for  a 
stipulated  term.  Ordinances  fixing  salaries  are  not  in  the 
nature  of  contracts  with  officers.2 

1  Baker  v.  City  of  Utica,  19  N.  Y.  326 ;  People  v.  Supervisors,  1  Hill,  362 ; 
Cumniing  v.  Mayor,  &c.  of  Brooklyn,  11  Paige,  596;  Jersey  City  v.  Quaife,  2 
Dutch.  (N.  J.)  63;  Andrews  v.  United  States,  2  Story  C.  C.  203;  United 
States  v.  Brown,  9  How.  487 ;  Barton  v.  New  Orleans,  16  La.  An.  395 ;  Mc- 
Clung  v.  St.  Paul,  14  Minn.  420,  1869;  Smith  v.  Commonwealth,  41  Pa.  St. 
335.  "It  is  very  plain  to  us  that  a  town  officer,  as  such,  has  no  legal  claim 
against  the  town  to  recover  pay  for  services  rendered,  unless  by  an  express 
vote  of  the  town,  or  an  uniform  usage  to  pay  that  particular  officer  from 
year  to  year,  for  his  services.  And  in  the  latter  case,  it  would  be  very  ques- 
tionable whether  a  recovery  at  law  could  be  had,  if  it  had  all  along  been  left 
to  the  town  to  make  such  compensation  as  they  should  deem  reasonable, 
after  the  services  had  been  rendered.  *  *  *  The  same  princi- 
ple has  always  been  recognized  in  this  state  in  regard  to  all  officers.  If  no 
law  of  the  state  fixed  their  fees  or  pay,  their  services  must  be  gratuitous." 
Per  Sedjield,  J.,  Boyden  v.  Brookline,  8  Vt.  284, 1836.  But  the  decision  (in 
Boyden  v.  Brookline,  8  Vt.  284.)  does  not  extend  strictly  beyond  official  ser- 
vices, and  when  a  town  agent,  acting  for  the  town,  or  the  town  itself,  em- 
ploys an  attorney  at  law  to  prosecute  or  defend  suits  against  the  town,  the 
latter  is  liable  for  the  services.  And  the  rule  is  the  same  if  the  "town 
agent,"  being  an  attorney,  renders  for  the  town  professional  services,  in 
suits  which  the  proper  authorities  of  the  town  directed  to  be  instituted. 
Langdon  v.  Castleton,  30  Vt.  285,  1858. 

8  Commonwealth  v.  Bacon,  6  Serg.  &  Rawle  (Pa.)  322,  1820;  followed, 
Baker  v.  Pittsburg,  4  Pa.  St.  49,  1846  (abolishing  annual  salary  of  collector 
of  tolls);  also,  approved:  University  v.  Walden,  15  Ala.  655,  1849,  but  dis- 
tinguished ;  Carr  v.  St.  Louis,  9  Mo.  190 ;  Comw.  v.  Mann,  5  W.  &  S.  (Pa.)  418 ; 
Smiths  County,  2  Par.  (Pa.)  293;  Madison  v.  Kelso.  32  Ind.  79;  Warner 
v.  People,  2  Denio,  272 ;  Conner  v.  Mayor,  &c.  of  New  York,  1  Seld.  285, 
296;  Augusta©.  Sweeny,  44  Geo.  463,  1871.  In  an  action  against  a  city 
treasurer,  on  his  official  bond,  for  moneys  received  by  him,  he  cannot  charge 
commissions  for  the  whole  term  at  the  rate  allowed  by  law  at  his  accession 
to  office,  when  his  compensation  has  been  changed  to  a  lower  rate  subse- 


Ch.  IX.]        COMPENSATION     OF     MUNICIPAL     OFFICERS.         289 

§  171.  But  where  the  services  to  be  performed  are  pro- 
fessional or  private,  rather  than  public  or  official,  an 
employment  under  an  ordinance  for  a  fixed  time,  at  a  fixed 
sum  for  the  period,  has  been  held  to  be  a  contract,  and  not 
subject  to  be  impaired  by  the  corporation.  Thus,  the 
appointment  or  election  by  a  city  council,  for  a  fixed  and 
definite  period,  of  a  city  officer— for  example,  a  city  engin- 
eer, for  one  year,  at  the  rate  of  one  thousand  dollars  per 
year — if  accepted  by  him,  constitutes,  in  the  opinion  of 
the  Supreme  Court  of  Massachusetts,  a  contract  between 
him  and  the  city,  and  the  city,  in  such  a  case,  has  no  au- 
thority, unless  expressly  conferred,  to  abolish  or  shorten 
the  term  of  office,  so  as  to  deprive  the  officer,  without  his 
consent,  of  the  right  to  compensation  for  the  full  period, 
unless  for  misbehavior  or  unfitness  to  discharge  the  duties 
of  the  place.1 

quently.  Iowa  City  v.  Foster,  10  Iowa,  189  ;  supra,  sec.  151.  In  Common- 
wealth v.  Bacon,  supra,  it  was  held  that  an  ordinance  which  reduced  the 
salary  of  the  mayor  after  the  commencement  of  his  term,  was  valid.  The 
court  said,  "  this  cannot  be  considered  in  the  nature  of  a  hiring  for  a  year, 
because  it  was  not  obligatory  on  the  mayor  to  serve  out  the  year."  Though 
ordinance  may  fix  term  and  compensation  of  officer,  the  office  may  be  abol- 
ished, if  its  abolition  be  not  forbidden,  or  salary  reduced.  There  is  no  con- 
tract between  corporation  and  officer  that  the  service  shall  continue,  or  the 
salary  not  be  changed.  Waldraven  v.  Memphis,  4  Coldw.  (Tenn.)  431, 1867 ; 
Hoboken  v.  Gear;  3  Dutch.  (N.  J.)  265,  1859.  General  power  to  a  corpora- 
tion to  fix  the  compensation  of  its  officers  does  not  authorize  it  to  take  away 
the  fees  of  an  officer,  which  are  specifically  fixed  by  the  same  charter.  Carr 
v.  St.  Louis,  9  Mo.  190,  1845.  The  legislature  may  provide  that  the  salary 
of  an  officer  may  be  fixed  by  one  board,  e.  g.,  a  common  council,  though  it 
is  payable  by  another,  e.  g.,  a  county,  or  board  of  supervisors,  and  in  that 
case,  the  latter  have  no  authority  to  change  it  when  once  fixed.  People  v. 
Auditors  of  Wayne,  13  Mich.  233. 

1  Chase  v.  Lowell,  7  Gray,  33,  1856 ;  and  see  Caverley  v.  Lowell,  1  Allen 
(Mass.)  289,  1861,  as  to  ordinance  constituting  a  contract  with  city  attor- 
ney. These  cases,  if  really  distinguishable  from  the  others,  should  not,  it  is 
believed,  be  extended,  but  the  principle  limited  to  instances  where  the  ser- 
vices are  not  essentially  official  in  their  nature,  and  where  the  officer  or 
other  party  is  bound  to  serve  for  the  fixed  and  definite  period. 

A  resolution  of  the  council  empowering  an  individual  to  collect  the  taxes 
due  the  city,  at  a  given  rate  per  cent,  on  the  amount  collected  for  his  com- 
pensation, may  be  repealed  or  modified  at  any  time  by  the  corporation,  on 
the  sole  condition  that  it  shall  be  liable  for  any  compensation  earned  under 
the  resolution  previous  to  its  repeal  or  modification.  Hiestand  t>.  New 
19 


290  MUNICIPAL     CORPORATIONS.  |Ch.  EX. 

§  172.  It  is  a  well  settled  rule  that  a  person  accepting  a 
public  office,  with  a  fixed  salary,  is  bound  to  perform  the 
duties  of  the  office  for  the  salary.  He  cannot  legally  claim 
additional  compensation  for  the  discharge  of  these  duties, 
even  though  the  salary  may  be  a  very  inadequate  remunera- 
tion for  the  services.  Nor  does  it  alter  the  case  that  by 
subsequent  statutes  or  ordinances  his  duties  within  the 
scope  of  the  charter  powers  pertaining  to  the  office  are  in- 
creased and  not  his  salary.  Whenever  he  considers  the 
compensation  inadequate,  he  is  at  liberty  to  resign.  The 
rule  is  of  importance  to  the  public.  To  allow  changes  and 
additions  in  the  duties  properly  belonging  or  which  may 
properly  be  attached  to  an  office  to  lay  the  foundation  for 
extra  compensation,  would  soon  introduce  intolerable  mis- 
chief. The  rule,  too,  should  be  very  rigidly  enforced.  The 
statutes  of  the  legislature  and  the  ordinances  of  our  mu- 
nicipal corporations  seldom  prescribe  with  much  detail  and 
particularity  the  duties  annexed  to  public  offices  ;  and  it 
requires  but  little  ingenuity  to  run  nice  distinctions  between 
what  duties  may,  and  what  may  not,  be  considered  strictly 
official ;  and  if  these  distinctions  are  much  favored  by 
courts  of  justice,  it  may  lead  to  great  abuse.1 

Orleans,  14  La.  An.  330,  1859.  The  court  did  not  regard  the  resolution  as 
creating  a  contract,  or,  if  so,  it  was  one  of  mandate,  revocable  at  the  will  of 
the  principal.     lb. 

1  Per  Potts,  J.,  in  Court  of  Errors  and  Appeals,  Evans  v.  Trenton,  4  Zabr. 
(N.  J.)  766,  1853.  See,  also,  Andrews  v.  United  States,  2  Story  C.  Ct.  202; 
Palmer  v.  The  Mayor,  &c.  of  New  York,  2  Sandford  (N.  T.)  318;  Bussieru. 
Pray,  7  Serg.  &  Rawle,  447;  Angell  &  Ames  on  Corp.  sec.  317;  Gilmore  v. 
Lewis,  12  Ohio,  281 ;  Detroit  v.  Redfield,  19  Mich.  376,  1869. 

A  salaried  officer  of  a  public  corporation  has  no  claim  for  compensation 
extra  his  salary,  on  the  ground  that  the  duties  of  his  office  have  been  in- 
creased, or  new  duties  added  since  the  salary  was  fixed.  People  v.  Super- 
visors, 1  Hill  (N.  Y.)  362;  Wendell  v.  Brooklyn,  29  Barb.  204;  Palmer  v. 
Mayor,  6cc.  of  New  York,  2  Sandf.  (N.  Y.)  318.  Special  instances,  where  a 
claim  for  compensation,  in  the  absence  of  express  provision,  has  been  sus- 
tained, where  the  law  has  required  a  public  officer  to  perform  a  duty, 
attended  with  trouble  and  expense,  clearly  outside  of  his  regular  official 
duties,  see  People  v.  Supervisors,  12  Wend.  257;  Bright  v.  Supervisors,  18 
Johns.  242;  Mallory  v.  Supervisors,  2  Cowen,  531 ;  II.  533;  Detroit  v.  Red- 
field,  19  Mich.  376,  1869.  This  subject  is  discussed  in  White  v.  Polk 
County,  17  Iowa,  413. 

"Where  salary  is  fixed  by  ordinance,  it  cannot  be  changed  by  a  commit- 


Ch.  IX.]  LIABILITY    TO     OFFICER.  '  99] 

§  173.  Not  only  has  an  officer,  under  sncli  circum- 
stances, no  legal  claim  for  extra  compensation,  but  a 
promise  to  pay  him  an  extra  fee  or  sum  beyond  that  fixed 
by  law  is  not  binding,  though  he  renders  services  and 
exercises  a  degree  of  diligence  greater  than  could  legally 
have  been  required  of  him.1 

Liability  of  Corporation  to  the  Officer. 

§  174.  Where  an  officer  of  a  municipal  corporation, 
elected  by  the  people  for  a  specified  term,  is  improperly 
removed  by  the  city  council,  he  may  sue  the  corporation 
for  his  salary  and  perquisites  for  the  time  intervening  his 
removal  and  the  expiration  of  his  term.2    It  is  a  defence  to 

tee  or  individual  members  of  the  corporation  ;  nor  will  their  promise  to  pay 
extra  compensation  for  the  duties  of  the  office  be  binding  on  the  corpora- 
tion. But  for  services  performed  by  request,  not  part  of  the  duties  of  his 
office,  and  which  could  as  appropriately  have  been  performed  by  any  other 
person,  such  officer  may,  in  proper  cases,  recover  a  just  remuneration. 
Evans  v.  Trenton,  4  Zabr.  (N.  J.)  764,  1853.  S.  P.,  Detroit  v.  Redfield,  19 
Mich.  376,  1869  ;  Converse  v.  United  States,  21  How.  4G3.  For  services 
required  by  ordinances,  the  city  attorney  is  entitled  to  the  compensation 
fixed  by  ordinance,  and  no  other;  and  the  mayor,  by  virtue  of  his  duty  to 
see  that  the  "ordinances  are  duly  enforced,"  cannot  bind  the  corporation 
to  pay  more  than  the  fixed  salary  or  compensation,  and  this  duty  does  not 
authorize  that  officer  to  employ  assistant  or  independent  counsel  in  any  case, 
at  the  expense  of  the  corporation.  Carroll  v.  St.  Louis,  12  Mo.  44,  1849. 
Further,  as  to  liability  of  city  to  attorneys,  see  the  chapter  on  Contracts. 

11  Heslep  v.  Sacramento,  2  Cal.  580  ($10,000  voted  to  mayor  for  merito- 
rious services,  held  void);  Hatch  v.  Mann,  15  Wend.  44;  reversiug  S.  C,  9 
lb.  262;  approved  Palmer  v.  Mayor,  &c.  of  New  York,  2  Sandf.  218; 
Bart  ho  v.  Salter,  Latch,  54;  W.  Jones,  65;  S.  C.  Lane  v.  Sewell,  1  Chitty, 
175;  lb.  295;  Morris  v.  Burdett,  1  Camp.  218;  3  lb.  374;  Callaghan  v. 
Hallett,  1  Caines  (X.  Y.)  104  ;  S.  O,  Col.  &  C.  Cas.  179  ;  Preston  v.  Bacon,  4 
Conn.  471 ;  Shattuck  v.  "Woods,  1  Pick.  175  ;  Bussier  v.  Pray,  7  Serg.  & 
Rawle,  447 ;  Carroll  v.  Tyler,  2  Har.  &  Gill,  54 ;  Smith  v.  Smith,  1  Bailey, 
70 ;  Debolt  v.  Cincinnati,  7  Ohio  St.  237 ;  Pilie  v.  New  Orleans,  19  La.  An. 
273.  The  principle  operates  to  deprive  a  public  officer,  or  an  officer  of  a 
municipal  corporation,  of  a  claim  for  a  reward  offered  for  a  service  which 
is  embraced  in  his  official  or  legal  duties.  Gilmore  v.  Lewis,  12  Ohio,  281, 
where  a  constable  who  arrested  a  thief  was  held  not  entitled  to  a  reward 
offered  by  the  defendant.  S.  P.,  Pool  v.  Boston,  5  Cush.  219.  See  an Uy 
chap.  VI.  &ec.  91. 

-  Stadler  v.  Detroit,  13  Mich.  346,  1865;  Shaw  v.  Mayor,  &c,  19  Geo.  468, 
1856.     The  court,  in  considering  the  rule  of  damages  in  such  a  case,  hold 


29?  MUNICIPAL     CORPORATIONS.  [Ch.  IX. 

the  corporation  that  the  officer  was  legally  removed  ;  but  if 
he  was  illegally  removed,  it  is  no  answer  to  the  action  that 
the  corporation,  in  making  the  removal,  acted  judicially, 
and  therefore  is  not  liable  for  the  error  it  committed.1 

that  the  officer  cannot  recover  of  the  corporation  counsel  fees  for  defending 
himself  against  the  charges  preferred  against  him,  but  may  recover  such 
"damages  as  necessarily  resulted  from  his  amotion  from  office,  viz:  his 
salary  and  perquisites."  19  Geo.  468,  supra.  But  the  corporation,  it  is  sug- 
gested, may  recoup  the  same  as  individuals  who  improperly  dismiss  servants 
employed  for  a  determinate  period.  2  Greeul.  Ev.  sec.  261a.  But  see  United 
States  v.  Addison,  6  Wall.  291 ;  Hoke  v.  Henderson,  4  Dev.  1. 

1  Shaw  v.  Mayor,  &c,  19  Geo.  468,  1856;  Shaw  v.  Mayor,  &c,  21  Geo. 
280;  see  S.  C.  Mayor,  &c.  v.  Shaw's  Administrator,  25  Geo.  590.  In  the 
case  last  cited,  it  was  decided  that  if  the  removal  of  a  city  officer  be  for 
a  specfied  cause,  not  warranting  the  removal,  and  the  officer  sue  the  corpo- 
ration for  his  salary,  as  a  defense  to  such  action  it  may  aver  and  prove  other 
matters,  good  in  law,  to  justify  such  removal.  In  thus  holding,  the  court 
say :  "  If  his  term  of  office  had  not  expired  when  this  suit  was  instituted, 
and  he  had  moved  for  a  mandamus  to  restore  him,  instead  of  bringing  an 
action  for  his  salary,  the  court  would  not  have  interfered,  if  good  cause  for 
his  removal  could  have  been  shown,  although  he  may  have  been  removed 
without  notice.  Rex  v.  Mayor,  &c,  2  Cowp.  523;  The  King  v.  The  Mayor, 
&c,  2  Term  R.  182"— per  McDonald,  J. ;  25  Geo.  590.  592.  See  Hoboken  v. 
Gear,  3  Dutch.  (N.  J.)  265.  An  incumbent  was  appointed  by  the  aldermen 
and  removed  by  the  mayor,  who  nominated  a  successor ;  the  incumbent's 
salary  did  not  cease  until  his  successor  was  confirmed.  White  v.  Mayor,  &c. 
of  New  York,  4  E.  D.  Smith,  563,  1855. 

Declaring  an  office  and  the  prospective  fees  of  the  officer  not  to  be  prop- 
erty, and  that  the  right  to  fees  grows  out  of  services  performed,  it  was  de- 
cided by  the  Court  of  Appeals  that  a  municipal  officer  who  had  been  kept 
out  of  his  office  and  had  not  performed  its  duties,  could  not  maintain  an 
action  against  the  city  to  recover  the  amount  of  fees  accruing  from  the 
office.  Smith  v.  New  York,  37  N.  Y.  518,  1868 ;  Hadley  v.  Mayor,  33  N.  Y. 
603,  607,  per  Denio,  C.  J. ;  Benoit  v.  Wayne  County,  20  Mich.  176,  Cooley, 
J.,  dissenting.  It  has,  however,  several  times  been  decided  in  California 
that  the  salary  annexed  to  a  public  office  is  incident  to  the  title  to  the  office, 
and  not  to  its  occupancy  and  exercise,  and  that  the  right  to  compensation  is 
not  affected  by  the  fact  that  an  usurper,  officer  de  facto,  has  discharged  the 
duties  of  the  office.  Dorsey  v.  Smith,  28  Cal.  21;  Stratton  v.  Oulton,  lb. 
44;  Carroll  v.  Siebenthaler,  37  lb.  193,  1869  ;  approved  Meagher  v.  County, 
5  Nev.  244,  1869.  See  People  v.  Miller,  24  Mich.  458,  1872;  Benoit  v. 
Wayne  County,  supra;  Philadelphia  v.  Given,  60  Pa.  St.  136,  per  Thompson, 
C.  J. 

The  legal  incumbent  of  a  municipal  office  rendering  service  is  entitled  to 
compensation  until  he  has  actual  notice  of  his  removal.  Jarvis  v.  Mayor, 
&c.  of  New  York,  2  N.  Y.  Leg.  Obs.   396.     As  to  notice :  Field  v.  Common 


Ch.  IX.]  LIABILITY     OF     OFFICER.  293 


Liability  of  the  Officer  to  the  Corporation  and  to  Others. 

§  17o.  Public  officers,  elected  pursuant  to  statute  by  a 
municipal  corporation,  are  not  the  servants  or  agents  of  the 
corporation  in  such  a  sense  as  will  enable  the  corporation, 
in  the  absence  of  a  statute  giving  the  remedy,  to  recover 
damages  against  such  officers  for  negligence  in  the  dis- 
charge of  their  official  duty.  If  the  corporation  can  recover 
at  all  in  such  an  action,  it  can  only  be  for  want  of  fidelity 
and  integrity,  not  for  honest   mistakes.1     To  protect   the 

wealth,  32  Pa.  St.  478,  1849;  -SfcparteRamshay,  83  Eng.  C.  L.  174,1852;  Ex 
parte  Hennen,  13  Pet.  230;  Queen  v.  Governors, &c,  8  Ad.  &E1.  682;  Pages. 
Hardin,  8  B.  Mon.  (Ky.)  648;  Bowerbank  v.  Morris,  Wall.  C.  C.  R.  118.  In 
The  City  v.  Given,  60  Pa.  St.  136,  the  plaintiff  acted  as  city  commissioner 
for  some  months,  when  it  was  decided  that  he  had  not  been  duly  elected, 
and,  in  a  suit  brought  for  his  salary,  it  was  held  that  he  could  not  recover, 
because  he  had  not  qualified  by  giving  security.  In  an  action  by  the  right- 
fill  officer  on  a  supersedeas  bond  given  in  a  quo  warranto  proceeding  by  an 
intruder,  the  measure  of  damages  is  the  full  amount  of  the  salary  (where 
the  office  has  a  fixed  salary)  received  by  the  intruder  pending  the  opera- 
tion of  the  supersedeas.  United  States  v.  Addison,  6  Wall.  291.  See  people 
v.  Miller,  24  Mieh.  458,  1872. 

Respecting  liability  of  an  intruder  to  the  officer  de  jure  for  salary  and 
fees  received,  and  when  an  action  will  lie  for  money  had  and  received. 
Glascock  v.  Lyons,  20  Ind.  1;  Douglas  v.  State,  31  Ind.  479;  Dorsey  v. 
Smythe,  28  Cal.  21 ;  Stratton  v.  Oulton,  lb.  44 ;  City  v.  Given,  60  Pa.  St. 
136;  Allen  v.  McKean,  1  Sumn.  117;  State  v.  Sherwood,  42  Mo.  179;  Huntei 
v.  Chandler,  10  Am.  Law  Reg.  (N.  S.)  440,  and  note;  Boyter  v.  Dodsworth, 
6  Term  R.  681;  Sadler  v.  Evans,  4  Burr.  1984;  Peoples.  Miller,  24  Mich.' 
458. 

1  Parish  in  Sherburne  v.  Fiske,  8  Cush.  264,  266,  1851,  opinion  by 
Detrey,  J.;  cites  White  v.  Philipson,  10  Met.  108;  Trafton  v.  Alfred,  8 
Shepl.  258;  Kendall  v.  Stokes,  3  How.  87;  Commonwealth  v.  Genther,  17 
Serg.  &  Rawle,  135;  Wilson  v.  Mayor,  &c.  of  New  York,  1  Denio,  595; 
Hancocks.  Hazzard,  12  Cush.  112;  Minor  v.  Bank,  1  Pet.  (U.  S.)  46,  69. 
Where  a  surveyor  of  highways  has,  by  law,  a  discretion  as  to  the  kind  of 
repairs,  and  exercises  his  best  judgment  and  acts  in  good  faith,  the  corpo- 
ration for  which  he  acts  is  bound,  and  cannot  defeat  his  recovery  for  the 
price  of  materials  furnished  by  evidence  to  show  that  the  repairs  were  not. 
in  fact,  necessary.  But  it  would  be  otherwise  if  fraud  or  corruption  were 
shown.  Palmer  v.  Carroll,  4  Fost.  (N.  H.)  314,  1851.  See,  also,  People  v. 
Lewis,  7  Johns.  73 ;  Seaman  v.  Patten,  2  Caines,  312. 

Personal  liability  of  municipal  Councillors  to  the  corporation  for  misa]>- 
propriation  of  its  funds  :  see  municipality  of  East  Nissouri  v.  Horseman,  16 


294  MUNICIPAL    CORPORATIONS.  [Ch.  IX. 

public,  however,  officers  are  usually  required  to  give  bonds, 
in  which  case  they  are,  of  course,  liable,  as  we  have  seen, 
according  to  the  conditions  thereof.  By  charter,  the  power 
to  appoint  policemen  was  conferred  on  a  board  of  police, 
composed  of  the  mayor  and  recorders,  and  this  board 
was  authorized  to  discharge  policemen,  for  cause,  and  to 
"  decide  on  all  police  maters  pertaining  to  appointments, 
dismissals,  &c,  finally  and  without  appeal."  In  an  action 
for  wages,  brought  against  the  city  by  a  policeman,  who 
claimed  that  he  had  been  appointed  for  a  year  and  dis- 
missed at  the  end  of  a  month,  without  good  cause,  the 
Supreme  Court  decided  that  the  board  having  dismissed  the 
plaintiff  for  what  it  deemed  sufficient  cause,  its  decision  was 
iinal,  and  the  sufficiency  of  the  cause  of  dismissal  was  not 
inquirable  into  in  the  action.1 

§  176.  In  this  country  the  officers  of  municipal  cor- 
porations are,  in  many  respects,  public  officers,  being 
charged  with  duties  which  concern  both  the  corporation  and 
the  public  at  large.  The  duties  and  liabilities  of  such 
officers  to  the  corporation  fall  within  the  scope  of  this 
treatise,  and  have  been  considered.  But  their  individual 
rights  and  their  liability  to  others,  upon  contracts  and  for 
torts,  are  not,  strictly  speaking,  embraced  in  the  plan  of  the 
work.  It  has,  however,  been  thought,  that  a  brief  reference 
to  some  of  the  more  important  rules  and  adjudications  on 
this  subject  was  desirable,  and  this  has  accordingly  been 
made  in  the  note.2 

Upper  Canada  Q.  B.  588.  Of  treasurer  for  paying  money  on  an  illegal  order 
or  resolution :  Daniels?;.  Burford,  10  Up.  Can.  Q.  B.  481. 

;  Nolan  v.  New  Orleans,  10  La.  An.  106,  1855. 

a  Suits. — Public  officers  have,  in  general,  a  •power  to  sue  commensurate 
with  their  duties.  If  officers  of  a  corporate  body,  suit  should  be  brought 
in  the  name  of  the  corporation,  unless  the  statute  direct  otherwise.  Stock  v. 
State,  6  Ind.  113;  State  v.  Rush,  7  lb.  221;  Supervisors®.  Stimpson,  4  Hill, 
136,  and  cases  cited;  Todd  v.  Birdsall,  1  Cow.  260,  and  cases  cited  in  note; 
Jan&en  v.  Ostrander,  1  Cow.  670;  Cornell  v.  Guilford,  1  Denio,  510;  com- 
pare Commissioners  v.  Perry,  5  Ohio,  57;  Barney  v.  Bush,  9  Ala.  345;  Van 
Keuren  v.  Johnson,  3  Denio,  182.  But  it  has  been  held,  that  a  public  officer 
cannot,  without  the  aid  of  a  statute,  maintain  a  suit  in  his  own  name,  al- 
though he  may  have  taken  a  note  or  contract  to  himself  individually,  if  the 
consideration  for  such  a  note  or  contract  be  a  liability  to  the  state.     The 


Ch.  IX.]  AMOTION    AND     DISFRANCHISEMENT.  295 


Amotion  and  Disfranchisement. 

§  177.  The  elementary  works  treat  of  Amotion  and  Dis- 
franchisement together :    indeed,   formerly,   the   important 

ground  of  this  rule  is  public  policy  to  discourage  public  officers  from  trans- 
acting, in  their  own  name,  tbe  business  of  the  public.  Hunter  v.  Field,  20 
Ohio,  340,  1851  ;  Irish  v.  Webster.  5  Greenl.  (Me.)  171;  Gilmore  v.  Pope,  5 
Mass.  491.  If  the  obligation  is  taken  to  the  officer  as  agent,  or  in  his 
official  capacity,  the  action  is  properly  brought  in  the  name  of  the  irovern- 
ment  beneficially  interested.  Dugan  v.  United  States,  3  Wheat.  172;  S.  P. 
United  States  v.  Boice,  2  McLean,  352 ;  United  States  v.  Barker,  1  Paine 
C.  Ct.  152;  2  Parsons  on  Notes  and  Bills,  451,  and  other  cases  cited.  An 
action  by  a  public  officer  does  not  abate  by  the  expiration  of  his  term  of 
office.  The  suit  may  be  continued  in  his  name  until  its  termination,  or,  by 
the  practice  in  many  of  the  States,  his  successor  may  be  substituted.  Kellar 
».  Savage,  20  Maine,  199,  1841;  Todd  v.  Birsdsall,  1  Cow.  260;  Haynes  v. 
Covington,  13  Sm.  &  Mar.  408;  Grant  v.  Faucher,  5  Cow.  369;  Colgrove  v. 
Breed,  2  Denio,  125;  Manchester  ».  Herrington,  10  N.  Y.  164;  Upton  v. 
Starr,  3  Ind.  538. 

Evidence.— Where  the  authority  of  an  officer  of  a  public  corporation 
comes  incidentally  in  question  in  an  action  in  which  he  is  not  a  party,  it  is 
sufficient  to  sh,ow  that  he  was  an  acting  officer,  and  the  regularity  of  his 
appointment  or  election  cannot  be  made  a  question.  Proof  that  he  is  an 
acting  officer  is  pr i ma  facie  evidence  of  his  election  or  appointment,  as  well 
as  of  his  having  duly  qualified.  But  if  he  relies  alone  on  proof  of  a  due 
election  or  appointment,  such  election  or  appointment  must  be  legally  es- 
tablished. Pierce  V.Richardson,  37  N.  H.  306,  1858;  Tucker  v.  Aiken,  7 
N.  H.  113;  Johnson  v.  Wilson,  2  N.  H.  202;  Baker  v.  Shephard,  4  Fost.  (N. 
H.)  212,  1851,  and  cases  cited;  Bean  v.  Thompson,  19  N.  H.  290;  Blake©. 
Sturdevant,  12  N.  H.  573 ;  Burgess  v.  Pue,  2  Gill  (Md.)  254.  An  officer, 
even  when  justifying,  may  prima  facie  establish  his  official  character  by 
proof  of  general  reputation,  and  that  he  acted  as  such  officer.  Johnson  v. 
Steadman,  3  Ohio,  94;  followed,  Eldred  v.  Seaton,  5  lb.  215;  Berryman  v. 
Wise,  4  Term  R.  366 ;  Potter  v.  Luther,  6  Johns.  431 ;  Wilcox  v.  Smith,  5 
Wend.  233;  People  v.  McKinney,  10  Mich.  54.  But  it  is  not  enough  to 
show  that  the  officer  was  acting  officially  in  the  particular  instance  in 
controversy  in  the  case  upon  trial,  and  in  which  his  authority  is  ques- 
tioned. HalU.  Manchester,  39  N.  H.  295,  1859.  An  acting  officer  is  es- 
topped to  dispute  the  validity  of  his  own  appointment  and  election.  State 
p.  Sellers,  7  Rich.  Law,  368;  State  v.  Mayberry,  3  Strob.  144. 

Acts  an"J>  Declarations  of  officers,  when  evidence  for  or  against  the  cor- 
poration. Mitchell  v.  Rockland,  41  Me.  363 ;  Jordan  v.  School  District,  38 
lb.  1864;  Morrell  v.  Dixfield,  30  lb.  157;  County  v.  Simmons,  5  Gilm.  (111.) 
516;  Railroad  Company  v.  Ingles,  15  B.  Mon.  637;  Glidden  v.  Unity,  33 
N.  H.  577;  Toll  Co.  v.  Betsworth,   30  Conn.  380;  Barnes  v.  Pennell,  2  H, 


296  MUNICIPAL     CORPORATIONS.  [Ch.  IX 

distinction  between  the  two  was  not  observed.  Amotion  re- 
lates alone  to  officers;  disfranchisement,  to  corporators  or 

of  L.  Cas.  497.  See  chapter  on  Corporate  Records  and  Documents,  post. 
The  acts  of  the  officers  of  municipal  corporations  in  the  line  of  their  official 
duty,  and  within  the  scope  of  their  authority,  are  binding  upon  the  body 
they  represent,  and  declarations  and  admissions  accompanying  such  acts  aa 
part  of  the  res  gestw,  calculated  to  explain  and  unfold  their  character,  and 
not  narrative  of  past  transactions,  are  competent  evidence  against  the  cor- 
poration. To  render  such  declarations  and  admissions  evidence,  they  must 
accompany  acts,  which  acts  must  be  of  a  nature  to  bind  the  corporate 
body.     Glidden  v.  Unity,  33  N.  H.  571.  1856. 

Notice. — Where  the  officers  or  agents  or  a  public  corporation  have  no 
powers  or  duties  with  respect  to  a  given  matter,  their  individual  knowledge, 
or  the  individual  knowledge  of  the  inhabitants  or  voters,  do  not  bind  or 
affect  the  corporation.  Harrington  v.  School  District,  30  Vt.  155,  1858 ;  An- 
gell  &  Ames  Corp.  sec.  239;  Hayden  v.  Turnpike  Co.,  10  Mass.  397.  The 
mayor  is  chief  executive  officer  of  the  city,  and  notice  to  him  of  a  nuisance 
is  sufficient,  when  it  would  not  be  to  the  clerk,  who  is  only  a  recording  offi- 
cer, not  authorized  to  act  upon  tfie  notice.  Nichols  v.  Boston,  98  Mass.  39, 
1867;  ante,  sees.  147,  148. 

Indictment  op  Public  and  Corpokate  Officers. — "  A  public  officer," 
it  is  declared  in  North  Carolina,  "  instrusted  with  definite  powers  to  be  ex- 
ercised for  the  benefit  of  the  community,,  who  wickedly  abuses  or  fraudu- 
lently exceedsthem,  is  punishable  by  indictment."  State  v.  Glasgow,  North 
Car.  Conf.  R.  186,  187  (indictment  of  secretary  of  state) ;  State  v.  Justices, 
&c,  4  Hawks  (North  Car.)  194  (when  county  authorities  indictable  for  non- 
repair of  jail) ;  see  Paris  v.  People,  27  111.  74;  State  v.  Commissioners  of 
Fayetteville  (non-repair  of  streets),  2  North  Car.  Law,  617;  lb.  633;  2Murph. 
371.  But  see  as  to  street  commissioner:  Graffurs  v.  Commonwealth,  3  Pa. 
(Penn.  &  W.)  502;  State  v.  Commissioners,  Walk.  (Miss.)  368.  Indictment 
of  municipal  officers  for  violation  of  charter.  People  v.  Wood,  4  Park.  Cr. 
R.  144;  Hammer  v.  Covington,  3  Met.  (Ky.)  494;  State  v.  Shelbyville,  4 
Sneed  (Tenn.)  176 ;  State  v.  Shields,  8  Blackf.  151 ;  Lathrop  a.  State,  6 
Blackf.  502;  State  v.  Burlington,  36  Vt.  521.  Requisites  of  indictment  for 
non-performance  of  official  duty.  Waters  v.  People,  13  Mich.  446;  States. 
Mayor,  11  Humph.  217;  State  v.  Commissioners,  2  Dev.  345;  3  Chitty 
Crim.  Law,  586,  606,  for  precedents  of  indictments  against  corporations. 
Criminal  information  against  municipal  officers.  Wiilc.  Corp.  315-318; 
Rex  v.  Watson,  2  Term  R.  204;  II.  198.  Indictment  against  municipal  cor- 
porations. See  chapter  on  Remedies  against  Illegal  Corporate  Acts,  post, 
sees.  745,  747. 

Liability  for  Moneys  Received. — A  public  or  municipal  officer,  who 
is  required  to  account  for  and  pay  over  money  that  comes  into  his  hands,  is 
liable,  though  it  be  stolen  without  his  fault,  unless  relieved  from  this  re- 
sponsibility by  statute.  Halbert  v.  State,  22  Ind.  125,  1864;  Muzzy  v.  Shat- 
tuck,  IDenio,  233;  State©.  Township,  28  Ind.  86;  Hancock  v.  Hayard,  12 
Cush.  112;  United  States  v.  Prescott,  3  How.  (U.  S.)  578;  Commonwealth  v. 


Cm.  IX.]  AMOTION    AND     DISFRANCHISE  UENT.  297 

members  of  the  corporation.  Amotion,  therefore,  is  the 
removal  of  an  officer  in  a  corporation  from  his  office,  but  it 

Coneley,  4  Pa.  St.  372;  State  v.  Harper,  6  Ohio  St.  707.  And  a  direction 
to  a  public  officer  (e.  g.  a  county  treasurer)  how  and  where  to  keep  the  money 
(e.  g.  in  a  safe  provided  by  the  county),  if  made  by  a  board  or  authority 
having  no  legal  control  or  power  over  the  matter,  will  not  be  a  defence  to 
such  officer  if  the  money  is  stolen  from  the  safe.  Halbert  r.  State,  supra. 
It  is  no  defence  to  a  tax  collector  to  recover  moneys  received  by  him, — that 
he  received  the  money  on  account  of  taxes  which  the  legislature  had  no 
constitutional  power  to  impose.  Waters  v.  States,  1  Gill  (Md.)  302,  1843; 
Thompson  v.  Stickney,  6  Alft.  579 ;  Evans  v.  Trenton,  4  Zabr.  764.  Treasurer 
held  not  entitled  to  credit  for  money  paid  contractors  upon  warrants  not 
drawn  according  to  the  charter.     McCormick  v.  Bay  City,  23  Mich.  457. 

Liability  on  Contracts. — Public  aud  municipal  officers  are  not  person 
ally  liable  on  contracts  within  the  scope  of  their  authority  and  line  of  duty, 
unless  it  is  very  apparent  that  they  intended  to  bind  themselves  person- 
ally. Macbeth  v.  Haldeman,  1  Term  R.  172,  and  Hodgden  v.  Dexter,  1 
Cranch,  145,  are  the  leading  cases.  The  question  is,  to  whom  was  the 
credit  given  ? — did  the  defendant  contract  in  his  public  or  private  capac- 
ity ?  See  Olney  v.  Wickes,  18  Johns.  122,  where  the  promise  was  held  not 
personal.  Compare  King  v.  Butler,  15  Johns.  281;  Gill  v.  Brown,  12  Johns. 
385;  Walker*.  Swartout,  II.  444;  Mott  v.  Hicks,  1  Cow.  513;  Sheffield  v. 
Watson,  2  Caines,  69;  commented  on,  12  Johns.  448;  Brown  v.  Rundlett 
(full  discussion),  15  N.  H.  360,  1844,  and  cases  cited  and  criticised;  Belknap 
v.  Rheinhart,  2  Wend.  375;  Adams  v.  Whittlessey,  3  Conn.  560;  8  ib.  329; 
Hammerskoldw.  Bull,  et  al.  ("  state  capitol  commissioners"),  11  Rich.  (South 
Car.)  Law,  493;  Lesley  v.  White,  1  Speers,  31;  Young  v.  Commissioners  of 
Roads,  2  Nott  &  McC.  537;  Miller  v.  Ford,  4  Rich.  (South  Car.)  Law,  376; 
S.  C,  4  Strob.  213;  Copes  v.  Mathews,  10  Sm.  &  Marsh.  398;  Tucker  v.  Short- 
er, 17  Geo.  620;  Hall  v.  Cockrell,  28  Ala.  507,  1856;  but  quaere,  as  to  its  cor- 
rectness. In  Nickerson  v.  Dyer,  105  Mass.  320,  the  agents  or  committee  of 
a  town  were  held  not  to  be  personally  liable.  Post,  chap.  XIV.  In  the 
absence  of  a  provision  to  the  contrary,  an  officer  of  a  municipal  corporation 
is  not  disabled  from  entering  into  a  contract  with  it.  Municipality  v.  Cald- 
win,  3  Rob.  (La.)  368,  1842.  It  is  held,  that  where  the  officers  of  a  public 
or  municipal  corporation,  acting  officially,  and  under  an  innocent  mistake 
of  the  law,  in  which  the  other  contracting  party  equally  participated,  with 
equal  opportunities  of  knowledge,  neither  party  at  the  time  looking  to  per- 
sonal liability,  the  officers  are  not,  in  such  case,  personally  liable,  nor  is  the 
corporation  liable.  Houston  v.  Clay  County  (unauthorized  contract  by  town 
ship  trustees  for  the  erection  of  a  bridge),  18  Ind.  396,  1862;  Boardman  v. 
Hayne,  29  Iowa,  339,  1870;  Duncan  v.  Niles,  32  111.  532,  1863,  and  cases 
cited ;  Ogden  v.  Raymond,  22  Conn.  379,  1853 ;  Dameron  v.  Irwin,  8  Ire. 
Law.  421,  1848;  Hite  t>.  Goodman,  1  Dev.  &  Bat.  Eq.  364,  1836;  Ives  v. 
Hulet,  12  Vt.  314,  1840;  Stone  v.  Huggins,  281b.  617;  Tucker  v.  Justices, 
13  Ire.  (Law)  434;  Dey  v.  Lee,  4  Jones  (Law)  238;  Tucker  r  Shorter,  17 
Geo.  620;  Copes  v.  Mathews,  10  Sm.  &  Marsh.    398;  Hall  v.  Cockrell,  28 


298  MUNICIPAL    CORPORATIONS.  [Ch.  IX. 

leaves  him  still  a  member  of  the  corporation.  Disfranchise- 
ment is  to  destroy  or  take  away  the  franchise  or  right  of 

Ala.  507;  compare  Potts  ®.  Henderson,  2  Ind.  (Carter)  327,  1850.  Liability 
under  statute,  of  trustees  or  directors  of  public  works  who  make  unauthor- 
ized contract:  Higgins  ®.  Livingstone,  4  Dow.  341;  Parrott  ®.  Eyre,  10 
Birig.  283 ;  Wilson  ®.  Goodman,  4  Hare,  54. 

Tax  Collector's  Liability  to  Third  Persons. — Tax  collector  liable  in 
trespass  who  seizes  without  color  of  law  for  tax  assessment,  or  under  an  un- 
constitutional law.  McCoy®.  Chillicothe,  3  Ohio,  370;  Ragnet  ®.  Wade,  4 
1  b.  107 ;  Loomis  ®.  Spencer,  1  Ohio  St.  150.  But  a  collector  whose  warrant 
is  in  due  form,  with  nothing  on  its  face  to  show  the  illegality  of  the  tax  or 
the  want  of  authority  in  the  assessors  or  previous  officers,  will  be  protected 
in  executing  it,  even  though  the  tax  be  not  lawfully  assessed.  Chegary  ®. 
Jenkins,  1  Seld.  (N.  Y.)  376,  1861  ;  affirming  S.  O,  3  Sandf.  Sup.  Ct.  R.  409; 
Abbott  v.  Yost,  2  Denio,  80;  Savacool  v.  Boughton,  5  Wend.  170,  1830, 
leading  case;  Downing  ®.  Rugar,  21  Wend.  178,  warrant  of  justice  to  over- 
seers of  poor;  Alexander  ®.  Hoyt,  7  Wend.  89;  Clark  ®.  Halleck,  16  Wend. 
607;  People  ®.  Warren,  5  Hill,  440;  Webber®.  Gray,  24  Wend.  440;  Loomis 
®.  Spencer,  1  Ohio  St.  153;  Little  ®.  Merritt,  10  Pick.  547;  see  Suydam  ®. 
Keys,  13  Johns.  444;  Gale  v.  Mead,  2  Denio,  160;  lb.  232;  Easton®.  Calen- 
der, 11  Wend.  90 ;  Clark  ».  Norton,  49  N.  Y.  243. 

Liability  op  Public  Officers  for  Acts  of  Subordinates. — Public 
officers  are  not  liable  for  the  misconduct  or  malfeasance  of  such  persons  as 
they  are  obliged  to  employ ;  the  reason  here  being,  that  the  maxim  of  res- 
pondeat superior  has  no  application,  there  being  no  freedom  of  choice  as  to 
the  selection  and  control  of  agents.  Bailey®.  Mayor,  &c,  3  Hill  (N.  Y.)  531, 
1842;  affirmed  in  error,  2  Denio,  433,  1845;  Hall  ®.  Smith,  2  Bing,  156; 
Pritchard  ®.  Keefer,  53  111.  117;  Humphreys  ®.  Mears,  1  Man.  &  Ryl.  187; 
Bolton  ®.  Crowther,  2  Dowl.  &  Ryl.  195;  Harris  ®.  Baker,  4  Maule  &  Selw. 
27.  See,  also:  Lane  ®.  Cotton,  1  Salk.  17;  Story  on  Agency,  320,  et  sea.; 
Story  on  Bail.  300,  302;  Martin  ®.  Mayor,  &c,  1  Hill,  545,  551;  Mayor,  &c. 
v.  Furze,  3  Hill  (N.  Y.)  612,  618. 

Liability  of  Public  Officers  for  Acts  Judicial  in  their  Nature. — 
Officers  are  not  liable  for  honest  errors  or  mistakes  of  judgment  as  to  acta 
within  the  scope  of  their  authority,  judicial  in  their  nature,  in  the  absence 
of  malice,  or  corruption,  or  statute  imposing  the  liability.  Ramsey  ®.  Riley, 
13  Ohio,  157;  Stewart  ®.  Southard,  17  lb.  402;  Conwell  ®.  Emrie  (road 
supervisor),  4  Ind.  200 ;  Bartlett  ®.  Crozier  (highway  overseer),  17  Johns. 
439  ;' Freeman  ®.  Cornwall  (highway  overseer),  10  lb.  470  ;  Johnson  ®.  Stan- 
ley, 1  Root  (Conn.)  245;  Township  ®.  Carey,  3  Dutch.  377;  Waters  v. 
Waterman,  2  lb.  214;  Craig  ®.  Burnett,  32  Ala.  728;  State  ®.  Dunnington, 
12  Md.  340;  Commissioners  ®.  Nesbitt,  11  Gill  &  J.  50.  Liability  where 
the  officer's  function  is  quasi  judicial.  Wilkes  ®.  Dinman,  7  How.  89,  where 
the  subject  is  much  considered,  and  malice  or  willful  wrong  held  to  be 
essential.  Waldron  ®.  Berry,  51  N.  H.  136,  1871.  The  members  of  a  city 
council  are  not  individually  liable,  in  a  civil  or  criminal  action,  for  acts  in- 
volving the  exercise  of  discretion,  unless  they  act  corruptly.     Walker  ®. 


Ch.  IX.]  AMOTION     AND     DISFRANCHISEMENT.  299 

being  any  longer  a  member  of  the  corporation.1  American 
municipal  corporations  are,  in  many  respects,   essentially 

Hallock,  32  Ind.  239,  1869;  Baker  v.  State,  27  Ind.  485.  Public  duty,  not 
ordinarily  enforceable  by  private  action  against  the  officer,  unless  given  by 
statute.  Foster  v.  McKibben,  14  Pa.  St.  168.  Misapplication  of  public  funds 
by  officer.  Township,  &c.  v.  Linn,  36  Pa.  St.  431.  Neglect  to  take  a  bond 
required  by  law.  Boggs  v.  Hamilton,  2  Const.  (South  Car.)  R.  381 ;  State 
v.  Dunuington,  12  Md.  340.  A  municipal  officer  misled  into  issuing  order 
not  liable  to  the  holder.     Boardman  v.  Hayne,  29  Iowa,  339. 

Liability  por  Torts. — Alvord  v.  Barrett  (town  clerk),  16  Wis.  175  ; 
American  Print  Works  v.  Lawrence,  3  Zabr.  590,  601.  No  liability  for  acts 
done  by  a  public  officer  under  lawful  authority  and  in  a  proper  manner. 
lb.  Full  discussion  and  cases  cited  by  Carpenter,  J.  S.  P.  in  S.  C,  1  Zabr. 
248,  260,  per  Green,  C.  J. ;  Caldins  v.  Baldwin,  4  Wend.  667,  and  cases 
cited.  How  far  protected  by  an  unconstitutional  statute.  lb.  Liability 
for  nonfeasance  or  misfeasance,  where  the  duty  is  specific,  imperative,  and 
not  judicial,  in  its  nature.  Griffith  v.  Follett,  20  Barb.  630,  1855;  Weaver 
v.  Devendorf,  3  Denio,  117;  Harmon  v.  Brotherson,  1  Denio,  537;  lb.  595; 
Adsit  v.  Brady,  4  Hill  (N.  Y.)  630,  1843.  The  principle  on  which  a  public 
officer  is  held  personally  liable  for  injuries  resulting  from  improper  execu- 
tion of  official  duties,  is  well  stated  in  Nowell  v.  Wright,  3  Allen,  166.  In 
Amy  v.  Supervisors,  1  Wall.  136,  1870,  where  county  supervisors  were  held 
to  be  personally  liable  for  failing  to  levy  a  tax,  as  commanded  by  the 
court,  to  pay  the  plaintiff's  judgment,  Mr.  Justice  Swayne,  stating  the  prin- 
ciple of  the  decision,  says:  "The  rule  is  well  settled,  that  where  the  law 
requires  absolutely,  a  ministerial  act  to  be  done  by  a  public  officer,  and  he 
neglects  or  refuses  to  do  such  act,  he  may  be  compelled  to  respond  in  damages 
to  the  extent  of  the  injury  arising  from  his  conduct;  mistake  of  duty  and 
honest  intentions  will  not  excuse  the  offender."  Liability  for  fraud: 
Oakland  v.  Carpenter,  13  Cal.  540.  Post,  sees.  147  n.,  730  n.  A  ministerial 
officer,  acting  in  good  faith,  is  liable  for  actual,  but  not  for  exemplary 
damages,  for  illegal  acts  injurious  to  private  persons.  Tracy  v.  Swartout, 
10  Pet.  (U.  S.)  80,  1836  (action  against  collector  of  customs);  lb.  137; 
Jenner  v.  Joliffe,  9  Johns.  382.  A  provision  of  law  making  a  civil  corpo- 
ration liable  "for  the  illegal  doings  and  defaults ''of  its  officers  (there 
being  no  provision  that  the  officers  shall  not  also  remain  liable)  does  not 
deprive  the  party  injured  of  his  right  to  proceed,  personally,  against  the 
officer  or  agent  who  committed  the  injury.  Both  are  liable.  Rounds  v. 
Mansfield,  38  Maine  (3  Heath)  586,  1854.  Election  officers  for  refusing  vote, 
when  liable.     Gordon  v.  Farrer,  2  Doug.  (Mich.)  411;  Carter  v.  Harrison  5 


1  2  Kyd,  50-94;  Willc.  245-276;  Glover,  chap.  XVI.  pp.  327-328; 
Grant,  250,  263.  And  see  2  Kent  Com.  278,  297,  where  amotion  and  dis- 
franchisement are  used  as  convertible  terms.  Angell  &  Ames  Corp.  chap, 
XII.  where  the  cases  are  very  fully  collected,  and  the  doctrine  of  the  Eng 
lish  decisions  satisfactorily  presented. 


300  MUNICIPAL     CORPORATIONS.  [Ch.  IX 

different  in  their  constitution  from  the  old  English  muni- 
cipal corporations,  under  which  most  of  the  cases  on  the 
subject  of  Amotion  and  Disfranchisement,  usually  cited  in 
the  books,  arose.  These  cases  are  often  inapplicable  here, 
and  should,  it  is  believed  by  the  author,  be  followed  by 
our  courts  as  precedents  with  unusual  caution,  and  only 
when  they  rest  upon  or  declare  principles  general  in  their 
nature,  and  which  embrace  in  their  operations  municipal 
institutions  possessing  the  distinctive  characteristics  of 
ours.  Here,  the  inhabitants  of  the  municipality  are  the 
corporators  ;  certain  of  those  inhabitants  (usually  all  of 
the  adult  male  residents),  have  the  right  to  elect  the  legis- 
lative or  governing  body,  and  also,  frequently,  the  other 
more  important  officers  of  the  corporation.  It  would  seem 
that  the  English  doctrine  of  disfranchisement  of  a  corpo- 
rator or  member  has  no  application  to  our  municipal  corpo- 
rations, whether  the  corporator  be  considered  the  "inhab- 
itant," or  the  "  voter." 

§  178.  Whether  the  power  of  disfranchisement  be  inci- 
dental to  the  corporation,  or  must  be  expressly  conferred, 
respecting  which  there  is  in  England  some  contrariety  of 
view,1  we  need  not  inquire,  for  here  (were  there  no  constitu- 
tional obstacles)  the  legislature  never  bestows  upon  the 
council  or  governing  body  which,  represents  the  corporation 
the  right  to  disfranchise  the  citizen  or  corporator,  and  it  is 
clear  that  such  a  formidable  and  extraordinary  authority 
does  not  exist,  and  cannot  be  exercised  by  the  council,  as 
an  incidental  or  implied  right.  To  burn  or  destroy  the 
charters  of  the  corporation,  or  willfully  to  falsify  its  books, 
were  in  England,  considered  such  breaches  of  duty  on  the 
part  of  a  corporator  as  would  work  a  forfeiture  of  the  cor- 

Blackf.  138;  Jeffries  v.  Ankeny,  11  Ohio,  374;  compare  Ramsey  v.  Riley,  13 
Ohio,  157.  See  Jenkins  v.  Waldron,  11  Johns.  114;  Lincoln  v.  Hapgood, 
11  Mass.  350;  Bridge  v.  Lincoln,  14  lb.  367.  Collection  and  revenue  officers 
not  liable  to  the  party  paying  for  money  voluntarily  paid  to  them.  Elliott 
v.  Swartout,  10  Pet.  137,  1836;  Thompson  v.  Stickney,  6  Ala.  579.  When 
liable  in  trespass.  McCoy  v.  Chillicothe,  3  Ohio,  370;  Loornis  v.  Spencer, 
1  Ohio  St.  153.  Recording  officer.  Ramsey  v.  Riley,  13  Ohio,  157;  approved, 
Stewart  v.  Southard,  17  lb.  402. 

1  Grant,  263.  "  This  right  [of  disfranchisement]  has  been  but  sparingh 
exercised,  though  it  is  undoubtedly  an  incident  to  every  corporation,  with 


Ch.  LX.]  amotion   and   disfranchisement.  301 

pora.te  character,1  there  being  according  to  Lord  Coke,  "a 
tacit  condition  annexed  to  the  franchise,  which,  if  he  break, 
he  may  be  disfranchised."8  Surely,  there  is  here  no  such 
tacit  condition  annexed  to  the  right  of  a  resident  of  a  muni- 
cipality to  be  and  remain  a  corporator,  though  there  may 
be  a  similar  condition  annexed  to  municirjal  offices.  Will- 
fully to  destroy  or  falsify  the  charter  or  books  of  a  muni- 
cipal corporation  is  an  act  which  is  punishable  by  the 
criminal  codes  of  the  different  states,  and  if  the  offender  is 
convicted  and  imprisoned,  it  may  result  as  an  incident  of 
such  conviction  that  he  will  cease,  for  the  time,  to  be  a  resi- 
dent, and  hence,  will  cease  to  be  a  member  of  the  corpora- 
tion ;  but  the  corporation  itself  has  no  power  to  disfran- 
chise him,  that  is,  to  deprive  him  of  the  privileges  and 
rights,  without  absolving  him  from  the  liabilities  of  other 
citizens,  while  he  remains  within  the  limits  of  the  munici- 
pality. 

179.  The  power  to  amove  a  corporate  officer  from  his 
office,  for  reasonable  and  just  cause,  is  one  of  the  common 
law  incidents  of  all  corporations.8    This  doctrine,  though 

perhaps,  some  exceptions  in  cases  of  trading  and  monetary  bodies."  It. 
Willcock  (271,  pi.  709)  denies  that  it  is  an  incidental  right,  and  claims  that 
the  rule  laid  down  in  the  second  resolution  (Bagg's  Case)  on  this  point,  that 
1 '  no  freeman  of  any  corporation  can  be  disfranchised  by  the  corporation, 
unless  they  have  authority  to  do  so  by  the  express  words  of  the  charter,  or 
by  prescription,"  is  the  law.  Mr.  Glover  simply  adopts  Mr.  Willcock's  lan- 
guage. Glover,  335.  Mr.  Kyd's  exposition  of  the  second  resolution  in 
Bagg's  Case,  2  Kyd,  52.  And  see  leading  case  of  Rex  v.  Richardson,  1 
Burr.  517,  which  was  a  case  of  amotion,  but  has  been  often  taken  as  assert- 
ing an  incidental  power  to  disfranchise  for  cause  as  well  as  amove.  Angell 
&  Ames,  sees.  408,  409 ;  see  generally,  Commonwealth  v.  St.  Patrick's  So- 
ciety, 2  Binn.  448,  1810 ;  Evans  v.  Philadelphia  Club,  50  Pa.  St.  107  ;  Hop- 
kinson  v.  Marquis  of  Exeter,  Law  Rep.  5  Eq.  63;  States.  Georgia  Med.  Soc, 
Am.  Law  Reg.  (N.  S.)  533,  Mr.  Mitchell's  note. 

1  Mayor  v.  Pilkinton,  1  Keb.  597 ;  Rex  v.  Chalke,  5  Mod.  257 ;  1  Lord 
Raym.  226 ;  Grant  Corp.  265. 

a  13  Coke.  98,  a. 

*  Rex  v.  Richardson,  1  Burr.  517;  Rex  v.  Liverpool,  2  Burr.  723;  Rex  v. 
Doncaster,  2  Burr.  738 ;  Jay's  Case,  1  Vent.  302 ;  Lord  Brace's  Case,  2  Stra. 
819;  Rex  v.  Ponsonby,  1  Ves.  Jr. ;  Rex  v.  Lyme  Regis,  Doug.  153;  Rex  v. 
Tidderly,  1  Sid.  14,  per  Hale,  C.  B. ;  Rex  v.  Taylor,  3  Salk.  231 ;  1  Roll.  Rep. 
409;  S.  C,  3  Bulst.  189;  Rex  v.  Chalke,  1  Lord  Raym.  225;  Rex  v.  Heaven, 


302  MUNICIPAL     CORPORATIONS.  [Ch.  IX. 

declared  before,1  has  been  considered  as  settled  ever  since 
Lord  Mansfield's  judgment  in  the  well-known  case  of  the 
King  against  Richardson.'1  It  is  there  denied  that  there 
can  be  no  power  of  amotion  unless  given  by  charter  or  pre- 
scription ;  and  the  contrary  doctrine  is  asserted,  that  from 
the  reason  of  the  thing,  from  the  nature  of  corporations, 
and  for  the  sake  of  order  and  government,  the  power  is  in- 
cidental. 

§  180.  But  the  power  to  amove,  like  every  other  inci- 
dental power,  is  incident  to  the  corporation  at  large,  and 
not  to  any  select  body  or  particular  part  of  it,  and  unless 
delegated  to  a  select  body  or  part,  it  must  be  exercised  by 
the  whole  corporation,  and  at  a  corporate  assembly  regu- 
larly and  duly  convened.3  The  power  to  hold  such  an  as- 
sembly is,  however,  implied  in  the  power  of  amotion.4 

§  181.  By  the  corporation  at  large,  as  here  used,  is 
meant  the  different  ranks  and  orders  which  compose  it,  in- 
cluding the  definite  and  indefinite  bodies.  The  essentials  in 
such  a  corporation  of  a  valid  corporate  assembly  have  else- 
where been  described.     Our  corporations,  however,  have  no 

2  Term  R.  772;  Reg.  v.  Newbury,  1  Queen's  Bench,  751;  2  Kyd,  50-94, 
where  the  old  cases  are  digested;  Glover,  chap.  XVI. ;  Willc.  246;-  Grant, 
240 ;  Angell  &  Ames,  chap.  XII. ;  2  Kent  Com.  297. 

1  Lord  Brace's  Case,  Stra.  819,  820;  Tidderley's  Case,  1  Sid.  U,perHale, 
C.  B. 

3  Rex  v.  Richardson.  1  Burr.  517  (31  George  II.)  "  It  is  necessary  to  tho 
good  order  and  government  of  corporate  bodies  that  there  should  be  such 
power  [amotion],  as  much  as  the  power  of  making  by-laws."     lb. 

3  Lord  Brace's  Case,  2  Stra.  819;  Rex  v.  Lyme  Regis,  Doug.  153;  Rex  v. 
Richardson,  supra;  Rex  v.  Doncaster,  Say.  38;  Rex  v.  Taylor,  3  Salk.  321; 
Hex  v.  Fevereham,  8  T.  R.  356;  Fane's  Case,  Doug.  153;  Willc  246,  pi.  629; 
Grant.  240,  241 ;  2  Kyd,  56 ;  Glover,  329 ;  State  v.  Jersey  City,  1  Dutch.  (X. 
J.)  536,  1856.  Even  if  the  right  to  elect  an  officer  be  in  a  particular  person 
or  select  class,  the  power  to  amove  is  not  incidental  to  it,  but  unless  ex- 
pressly changed  or  limited  by  charter,  it  belongs- to  the  corporation  at  large. 
Lord  Mansfield  seemed  to  be  of  opinion  that  it  was  competent  to  transfer 
this  power  from  the  whole  body  to  a  select  body  by  an  ordinance,  or  by 
law.  Bagg's  Case,  11  Co.  99,  a;  Rex  v.  Richardson,  1  Burr.  539.  But  this 
question  seems  not  to  have  been  directly  determined.  Willc.  247,  pi.  634 ; 
lb.  248,  pi.  635;  State  v.  Jersey  City,  1  Dutch.  (X.  J.)  536. 

4  Fane's  Case,  Doug.  153 ;  Rex  v.  Lyme  Regis,  lb.  149. 


Ch.  IX.]  AMOTION     AND     DISFRANCHISEMENT.  303 

ranks,  orders,  or  integral  parts  corresponding  strictly  to  the 
constitution  of  an  old  English  corporation.  Here  the  com- 
mon council,  or  the  elective  governing  body  (whatever  name 
be  given  to  it),  exercises  all  of  the  powers  of  the  incorpo- 
rated place.  Has  the  council,  as  the  representative  of  the 
corporation,  the  incidental  powers  of  a  corporation,  such  as 
the  power  to  amove,  or  the  power  to  ordain  by-laws  ?  or  is 
the  council  in  the  nature  of  a  select  body,  possessing  no 
right  to  exercise  any  of  the  ordinary  incidental  powers  of 
the  corporation,  unless  expressly  authorized  by  charter  or 
legislative  grant  ?  The  question  not  being  judicially  settled 
as  to  our  municipal  corporations,  the  opinion  is  ventured 
that,  in  the  absence  of  an  express  grant  or  statute  conferring 
or  limiting  the  power,  the  common  council  of  one  of  our 
ordinary  municipal  corporations,  in  the  absence  of  any  ex- 
press or  implied  restriction  in  the  charter,  does  possess  the 
incidental  power  not  only  to  make  by-laws,  but,  for  cause, 
to  expel  its  members,  and,  for  cause,  to  remove  corporate  offi- 
cers, whether  elected  by  it  or  by  the  people.  Whatever  ne- 
cessity or  reason  exists  for  the  right  of  amotion  at  common 
law  with  respect  to  the  corporation  at  large,  exists  here  with 
respect  to  that  authorized  body  by  which  alone  the  corpora- 
tion acts,  and  which  exercises  all  its  powers  and  functions. 
All  of  the  inhabitants  cannot  meet  and  act  in  their  primary 
capacity,  except  in  organizations  like  the  towns  in  the  New 
England  states,  and  if  the  right  of  amotion  exist  at  all,  it 
must  be  exercised  by  the  council  or  governing  body  of  the 
corporation.  If  it  does  not  exist  in  the  council,  it  cannot 
be  delegated  to  it  by  an  ordinance  or  by  any  act  of  the  cor- 
poration, though  if  the  right  does  exist,  its  exercise  may, 
of  course,  be  regulated  by  ordinance  or  by-law.1 

1  See,  generally,  Willard's  Appeal,  4  Rh.  Is.  597 ;  State,  &c.  v.  Trustees, 
&c,  5  Ind.  89 ;  State  v.  Bryce,  7  Ohio,  part  II.  p.  82 ;  Commonwealth  v.  St. 
Patrick's  Society,  2  Biun.  (Pa.)  448 ;  Commonwealth  v.  Bussier,  5  Serg.  & 
Rawle,  4ol;  Commonwealth  v.  Guardians,  &c.,6  Serg.  &  Rawle,  469;  Com- 
monwealth v.  Sutherland,  3  Serg.  &  Rawle,  143 ;  Johns  v.  Nicholls,  2  Dall. 
184;  1  Yeates,  80;  People  v.  Comptroller,  &c,  20  Wend.  595;  State,  &c.  v. 
Lingo,  2G  Mo.  496;  Fawcett  v.  Charles,  13  Wend.  47:3;  Hoboken  v.  Gear,  3 
Dutch.  265;  People  v.  Board  of  Trade,  45  III.  1.12,  1867;  Neall  v.  Hill,  16 
Cal.  145;  States.  Chamber  of  Commerce,  20  Wis.  63;  Peoples.  Medica 
Society,  24  Barb.  570;  Evans  v  Philadelphia  Club,  50  Pa.  St.  107  ;  State  t>. 
Georgia  Medical  Society,  8  Am.  Law  Reg.  (N.  S.)  533,  and  note;  Smith  v 


304  MUNICIPAL    CORPORATION'S.  [Oh.  IX. 

§  182.  A  provision  in  a  city  charter  vesting  the  board 
of  aldermen  with  the  sole  power  to  try  all  impeachments 
of  city  officers,  the  judgment  only  extending  to  removal 
and  disqualification  to  hold  any  corporate  office  under  the 
charter,  is  not  unconstitutional  as  authorizing  the  exercise 
of  judicial  powers  by  a  legislative  or  municipal  body,  but  is 
rather  the  exercise  of  a  power  necessary  for  its  police  and 
good  administration.1 

§  183.  When  the  terms  under  which  the  power  of 
amotion  is  to  be  exercised  are  prescribed,  they  must  be 
2?ursued  with  strictness*    Whether,  if  the  power  to  expel ' 

Smith,  3  Desaus.  557.  But  see  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  536,  in 
which  the  power  to  expel  a  member  of  the  council  was  expressly  conferred, 
but  where  Mr.  Justice  Potts,  delivering  the  opinion  of  the  court,  says: — 

"The  rule  is  well  settled,  that  a  corporation  has,  at  common  law,  an  in- 
herent jurisdiction  to  expel  a  member  for  sufficient  cause."  After  noticing 
the  offenses  which  will  justify  expulsion,  he  adds:  "But  the  jurisdiction  in 
this  case  is  not  derived  from  the  common  law.  The  common  council  is  not 
the  corporation,  and,  whatever  powers  a  municipal  corporation  may  have  to 
amove  or  expel  a  member  at  common  law,  it  is  clear  that  the  corporation 
itself  has  not,  by  any  by-law,  delegated  any  of  them  to  the  common  coun- 
cil, and  that  body,  therefore,  cannot  avail  itself  of  the  common  law  juris- 
diction, vested  as  an  inherent  right  in  the  corporation  itself,  to  expel  a 
member  of  their  own  body.  2  Bac.  Abr.  21,  title  Corporations ;  Willc.  on 
Corp.  629.  The  council  derives  its  jurisdiction  from  the  charter  of  the  cor- 
poration." This  case  rules  that  where,  in  express  terms,  the  right  of  the 
council  to  expel  a  member  for  certain  causes  is  given,  it  cannot  exercise  the 
power  for  any  other  cause.  And  it  would  seem  to  be  the  opinion  of  the 
court,  or  at  least  of  the  judge  delivering  the  opinion,  that  the  common  law 
power  of  expulsion  belonging  to  a  corporation  could  not  be  exercised  by 
the  common  council,  that  body  not  being  the  corporation  in  which  the 
power  is  vested.  Same  principle  as  to  private  corporations.  State  v. 
Chamber  of  Commerce,  20  Wis.  72.  Compare  People  v.  Board  of  Trade,  45 
111.  113. 

1  State  v.  Ramos,  10  La.  An.  420.  See  People  v.  Bearfield,  35  Barb.  254 , 
supra,  sec.  139.  A  board  of  aldermen  sitting  in  a  judicial  capacity  as  a 
court  of  impeachment  to  try  charges  preferred  against  a  city  officer  by 
another  branch  of  the  municipal  governing  body,  is  a  court  of  limited  juris- 
diction, and  if  not  sworn,  or  not  sworn  by  an  officer  authorized  to  adminis- 
ter oaths,  their  proceedings  and  judgment  of  guilty  are  void,  and  create  no 
vacancy.  Tompert  v.  Lithgow,  1  Bush  (Ky.)  176,  1866.  See  Hadley  v. 
Mayor,  &c,  33  N.  Y.  603,  cited  infra,  sec.  191,  note. 

4  State  v.  Lingo,  26  Mo.  (5  Jones)  496;  State  v.  Trustees  of  University,  5 
Ind.  77,  89,  1854;  State  v.  Bryce,  7  Ohio,  part  II.  p.  82;    State  v.  Chamber 


Ch.  IX.  J  AMOTION     AND    DISFRANCHISEMENT.  305 

or  remove  be  given  for  certain  causes,  this  excludes  the 
right  to  exercise  the  power  in  any  other  case,  will  depend 
upon  the  intent  of  the  legislature  to  be  gathered  from  a  con- 
sideration of  the  whole  charter  or  statute.  Power  to  ap- 
point "  subject  to  removal  only  for,"  &c,  clearly  limits  the 
power  of  removal  to  the  specified  causes.1  Express  power 
of  expulsion  or  removal  for  specified  reasons  was,  in  New 
Jersey  and  in  Georgia,  considered  to  exclude  any  implied 
power,  or  to  limit  the  right  to  the  enumerated  causes.* 

§  184.  A  charter  of  a  municipal  corporation  gave  to  the 
common  council  express  power  to  "  expel  a  member  for  dis- 
orderly conduct,"  and  one  of  the  aldermen  being  guilty  of 
official  corruption  in  receiving  bribes,  was,  after  a  hearing, 
expelled  from  the  council.  The  court  was  of  opinion  that 
the  question  as  to  the  right  to  expel  for  the  conduct 
charged,  depended  upon  the  construction  of  the  words 
"disorderly  conduct,"  and  it  held  that  receiving  bribes  for 
his  official  influence  and  votes  was  disorderly  conduct,  within 
the  meaning  of  the  charter.8    In  another  case,  the  charter 

of  Commerce,  20  Wis.  63 ;  Regina  v.  Sutton,  10  Mod.  76 ;  Paston  v.  Urber, 
Hutt.  103  ;  Regina  v.  Ricketts,  7  Ad.  &  El.  966;  Regina  v.  Oxford,  6  Ad.  & 
El.  349;  Commonwealth  v.  Sutherland,  3  Serg.  &  Rawle,  145 ;  Common- 
wealth v.  Shaver,  3  Watts  &  S.  338.  In  the  Queen  v.  Sutton,  supra,  so 
strictly  was  a  clause  in  a  charter  conferring  the  right  of  removal  construed, 
that  it  *ras  held  that  where  acts  were  to  be  done  by  a  majority,  that  word 
wa3  to  be  understood  as  a  majority  of  the  whole  corporation,  and  that  if  the 
officer  whose  removal  was  proposed  was  a  member,  it  could  be  effected  only 
by  a  majority  of  all  the  members,  including  himself,  and  that  his  personal 
interest  did  not  exclude  him  from  voting  as  a  member  upon  the  question. 
See,  also,  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  536 ;  Madison  v.  Korbly,  32 
Ind.  74 ;  State  v.  McGarry,  21  Wis.  496,  where  "  other  cause  "  for  removal 
was  held  to  mean  "other  like  cause." 

1  People  v.  Higgins,  15  111.  110. 

2" State  v.  Jersey  City,  1  Dutch.  536,  1856;  The  Mayor,  &c.  v.  Shaw,  16 
Ga.  172,  1854.  See  S.  C,  19  lb.  468;  21  lb.  280;  25  lb.  590.  But  see 
Commonwealth  v.  St.  Patrick's  Society,  2  Binn.  441;  4  lb.  448;  Angell  v. 
Ames,  sec.  415.  Under  the  Rlinois  statute,  it  is  held  that  the  county 
authorities  do  not  possess  general  powers  of  removal,  and  that  they  cannot 
remove  a  treasurer  elected  by  the  people,  except  for  causes  specified  in  the 
statute;  but  it  may  be  observed  that  a  county  treasurer  is  not  a  corporate 
officer.     Clark  v.  The  People,  15  111.  213,  1853. 

'  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  536,  1856. 
20 


306  MUNICIPAL     CORPORATIONS.  [Ch.  IX. 

authorized  the  council  k'to  dismiss  the  marshal  for  mal- 
practice in  office,  or  neglect  of  duty  ;"  and  it  was  held  that 
the  council  could  not  remove  this  officer  for  the  crime  of 
gambling,  as  this  was  neither  malpractice  in  office,  nor 
official  neglect,  within  the  meaning  of  the  charter.1 

§  185.  The  power  to  expel  a  member  of  the  council  does 
not  authorize  a  resolution  by  it  that  "  the  president  of  the 
council  be  directed  not  to  appoint  a  certain  member  on  any 
committee,  nor  call  his  name,  nor  allow  him  to  take  part  in 
the  action  of  the  board,"  since  this  would  create  no  vacancy 
which  could  be  supplied,  but  would  leave  the  seat  occu- 
pied, while  it  silenced  the  occupant, «and  left  his  con.'rtitu 
ents  unrepresented.2 

§  186.  The  expulsion  of  a  member  of  the  common 
council  does  not  disqualify  him  from  being  re-elected  to  the 
same  office,  unless  it  is  expressly  so  provided  by  the 
charter,  for  where  the  law  annexes  a  disqualification  to  an 
offence,  it  does  so  in  terms.  Hence,  if  a  member  having 
been  expelled,  even  for  bribery,  be  re-elected,  he  cannot  be 

1  Mayor  v.  Shaw,  &c,  16  Ga.  172,  1854. 

Whether  the  council  possesses  the  power  punish  for  contempt  depends 
upon  the  provisions  of  the  charter.  The  power  must,  as  the  author  con- 
ceives, be  conferred  either  expressly  or  as  incidental  to  some  power  which  is 
conferred,  or  it  will  not  exist.  In  Doyle  v.  Falconer,  1  Privy  CounSil  Ap- 
peals, 329,  it  was  held  that  the  colonial  parliament  of  Dominica  had  not  the 
inherent  privilege  of  parliament  as  a  court,  and  could  not  therefore  punish 
for  contempt;  but  in  the  later  case  of  The  Speaker  v.  Glass,  3  lb.  560,  it 
was  decided  that  the  delegation  of  legislative  authoiity  to  the  Victoria  par- 
liament was  broad  enough  to  include  this  power.  These  cases  afford  very 
interesting  illustrations  of  the  nature  of  the  power  to  punish  for  contempt. 
Power  of  courts  of  the  United  States  to  punish  for  contempt.  Burr's  Trial, 
355  ;  U.  S.  v.  Hudson,  7  Cranch,  32.  Ex  parte  Kearney,  7  Wheat.  38.  Power 
of  Congress,  11  U.  S.  Stats,  at  Large,  155;  12  lb.  333. 

J  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  536,  1856.  See  State  v.  Chamber 
of  Commerce,  20  Wis.  72.  Whether,  pending  proceedings  to  expel,  a  mem- 
ber can  be  suspended  from  his  duties,  was  a  question  not  determined  in  the 
case;  but  in  the  State,  &c.  v.  Lingo,  26  Mo.  496,  1858,  it  was  held  that  the 
power  to  provide  for  removing  from  office  corporate  officers  gives  the  power 
to  suspend  from  office  during  the  investigation  of  the  charges  for  which  the 
suspension  was  made.  The  court  say,  ''The  power  to  remove  necessarily 
includes  the  minor  power  to  suspend."     lb.  499. 


Ch.  IX.]  AMOTION     AND     DISFRANCHISEMENT.  307 

expelled  a  second  time  for  the  same  identical  act  for  which 
he  had  before  been  expelled.1 

§  187.  It  was  held  in  a  case  in  Rhode  Island  that  a 
clerk  of  a  school  committee, — an  officer  created  by  the 
school  law,  and  necessary  to  the  organization  and  legal 
action  of  the  committee, — may,  after  an  election  by  the 
committee,  be  removed  from  office  b}^  the  committee,  but 
only  for  cause,  as  the  statute  gives  no  express  power  to  re- 
move, and  after  dne  notice  and  opportunity  given  him  to 
defend  himself  upon  the  charges  presented.8 

§  188.  Where  an  officer  is  appointed  during  pleasure, 
or  where  the  power  of  removal  is  discretionary,  the  power 
to  remove  may  be  exercised  without  notice  or  hearing.. 
But  where  the  appointment  is  during  good  behavior,  or 
where  the  removal  can  only  be  for  certain  specified  causes. 
the  power  of  removal  cannot,  as  will  presently  be  shown,  be 
exercised,  unless  there  be  a  charge  against  the  officer, 
notice  to  him  of  the  accusation,  and  a  hearing  of  the  evi- 
dence in  support  of  the  charges,  and  an  opportunity  giver 
to  the  party  of  making  defence.3 

1  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  536,  1856.     If  the  common  coun 
cil,  without  authority,  suspend  a  member  from  the  duties  of  his  office,  man 
damns  is  a  proper  remedy  to  restore  him  to  the  exercise  of  his  legal  rights. 
lb.     Willc.  on  Municipal  Corporations,  368,  pi.  74,  75;  lb.   377,  pi.  96;  8 
Blacks.  Com.  110;  Rex  v.  Barker,  2  Burr.  1266;  Angell  &  Ames  on  Corpora- 
tions, sec.  702,  706. 

8  Willard's  Appeal,  4  Rh.  Is.  595,  597,  per  Ames,  C.  J.,  who  says,  "Such 
a  power  with  regard  to  such  an  officer,  unless  expressly  forbidden  by  law, 
is  incidental  to  the  committee  as  necessary  to  enable  it  duly  to  perform  its 
functions."  lb.  p.  601.  It  is  sufficient  cause  for  the  removal  of  such  a 
clerk,  that  he  refuses  to  produce  papers  which  belong  to  the  body  which 
elected  him,  and  of  which  he  is  simply  the  custodian,  or  refuses  to  keep  or 
amend  the  records  when  duly  ordered  to  do  so.     lb. 

a  Field  v.  Commonwealth,  32  Pa.  St.  478,  1859;  Ex  parte  Ramshay,  83 
Eng.  Com.  Law,  174,  189,  1852;  Ex  parte  Heiinen,  13  Pet.  (U.  S.)  230; 
Queen  v.  Governors,  &c,  8  Ad.  &  El.  682;  Bagg's  Case,  11  Coke,  98  (6) ;  Rex 
v.  Coventry,  1  Ld.  Raym.  391 ;  Dr.  Gaskin's  Case,  8  T.  R.  209  ;  Rex  v.  Ox- 
ford, 1  Salk.  428;  Rex  v.  Mayor,  &c,  1  Lev.  291 ;  2  Kyd,  58,  59;  Willc.  253, 
254;  Grant,  244;  Rex  v.  Andover,  1  Ld.  Raym.  710;  Page  v.  Hardin,  8  B. 
Mon.  648;  Hoboken  v.  Gear,  3  Dutch.  265;  Madison  v.  Korbly,  32  Ind.  74, 
1869;  Stadler  v.  Detroit.  13  Mich.  346,  1865.     As  to   the   removal^  by   the 


308  MUNICIPAL     CORPORATIONS.  [Ch.  IX 

§  189.  In  the  leading  case  of  the  King  v.  Richardson, 
the  point  was  decided,  as  above  mentioned,  that  a  corpora- 
tion, in  the  absence  of  an  express  grant  of  authority,  had 
the  incidental  power  to  make  a  by-law  to  remove  officers  for 
Just  cause.  Lord  Mansfield,  in  that  case,  classified  the 
offences  which  would  justify  the  exercise  of  the  power ;  and 
his  judgment  therein  has  been  followed  both  in  England 
and  in  this  country,  in  cases  arising  in  private  corporations 
not  of  a  pecuniary  character.  According  to  Lord  Mans- 
field, there  are  three  sorts  of  offences  for  which  an  officer  or 
corporator  may  be  discharged :  1.  Such  as  have  no  im- 
mediate relation  to  Ms  office,  but  are  themselves  of  so  in- 
famous a  nature  as  to  render  the  offender  unfit  to  execute 
any  public  franchise.  2.  Such  as  are  only  against  his  oath 
and  the  duty  of  his  ofilce  as  a  corporator ;  and  amount  to 
breaches  of  the  tacit  condition  annexed  to  his  franchise  or 
office.  3.  Offences  of  a  mixed  nature — as  being  an  offence 
not  only  against  the  duty  of  his  office,  but  also  a  matter  in- 
dictable at  the  common  law. '    In  offences  of  the  first  class 

appointing  power,  of  officers,  the  duration  of  whose  term  is  not  fixed,  see 
Peoples.  Comptroller,  &c.,  20  Wend.  595;  Commonwealth  v.  Sutherland,  3 
Serg.  &  Rawle,  145 ;  Field  v.  Girard  College,  54  Pa.  St.  233. 

It  is  the  law  in  England,  as  applied  to  the  old  corporations,  that  causes 
which  disqualify  the  person  to  be  an  officer  will  not  authorize  the  corpora- 
tion to  amove  him,  but  he  must  be  ousted  by  quo  warranto.  The  reason 
given  is,  that  one  so  disqualified  is  not,  in  law,  a  corporate  officer,  and 
hence,  cannot  be  amoved  as  such  by  the  corporation.  Rex  v.  Doncaeter, 
Say.  40  ;  Buller  N.  P.  203 ;  Rex  v.  Lyme  Regis,  Doug.  85  ;  Symmers  v.  Re- 
gem,  Cowp.  502 ;  Willc.  259,  pi.  669 ;  lb.  281,  pi.  728.  And  see  Fawcett 
v.  Charles,  13  Wend.  473,  1835.  It  has  elsewhere  been  shown,  that  with 
us,  the  councils  of  municipal  corporations  are  often  made  judges  of  the 
qualifications  of  their  members  and  officers,  and  this  may  modify  or  change 
the  rule  above  mentioned,  which  seems  to  rest  on  narrow  and  technical 
grounds. 

1  Rex  v.  Richardson,  1  Burr.  517,  538,  1758;  followed,  Rex  v.  Liverpool, 
2  Tb.  723.  So,  also,  in  Commonwealth  v.  St.  Patrick's  (Benevolent)  Society, 
2  Binn.  441,  1810;  Commonwealth  v.  Guardians,  &c,  6  Serg.  &  Rawle,  469, 
1821.  These  cases  adopt  Lord  Mansfield's  classification,  and  assert  the  in- 
herent power  of  corporations  to  expel  for  offences  falling  within  any  of  the 
three  classes.  See,  also,  Butch.  Benef.  Ass.,  35  Pa.  St.  151;  38  lb.  278; 
Evans  v.  Philadelphia  Club,  50  Pa.  St.  107;  Society,  &c.  v.  Commonwealth, 
52  Pa.  St.  125. 

The  courts  may,  by  mandamus,  compel  a  corporation  to  amove  an  officer ; 
and  the  result  of  the  cases  on  this  point  is  considered  to  be  that  where  the 


Cn.  IX.]  AMOTION    AND    DISFRANCHISEMENT.  309 

the  removal  can  only  be  made  after  there  has  been  a  pre- 
vious conviction  in  a  court  of  law  ;  and  an  amotion  will  not 
be  sustained  by  a  subsequent  conviction.*  In  offences  of 
the  second  class  the  corporation  may  try,  and  if  the  charge 
is  established,  remove,  without  any  previous  or  other  pro- 
ceeding in  the  courts.2  In  offences  of  the  third  class  the 
English  judges  have  differed  on  the  point  whether  the 
officer  may  or  may  not  be  removed  before  a  conviction  in  a 
court  of  justice.  The  principal  cases  and  the  result  on  this 
point  are  briefly  stated  in  the  note.* 

offence  of  the  officer,  is  such  that  the  corporation  has  the  potcer  to 
amove,  the  court  will  only  compel  it  to  do  so  where  some  one  is  injured  by 
the  omission  to  remove ;  but  where  it  is  required  to  amove,  or  the  office  is 
declared  by  the  charter  or  statute  to  be  void  if  such  an  act  be  done  or 
omitted,  there  the  court  will  compel  it  to  amove,  though  no  one  be  shown 
to  have  been  aggrieved.  Rex*.  Truro,  3  Barn.  &  Aid.  592;  Res  v.  West 
Looe,  5  Dowl.  &  R.  416  ;  Rex  v.  Totness,  1  b.  483  ;  Grant  on  Corp.  243,  and 
note. 

1  Rex  v.  Richardson,  supra,  and  cases  cited  in  last  note. 

2  Rex  v.  Richardson,  supra ;  Commonwealth  v.  St.  Patrick's  Society, 
supra,  and  cases  cited  in  preceding  note. 

3  Rex  v.  Carlisle,  Fortesc.  200;  S.  C,  11  Mod.  379.  In  this  case  the  cor- 
poration, before  conviction,  amoved  a  capital  citizen  for  giving  a  bribe  to  a 
freeman  and  offering  him  another  to  influence  his  vote  at  the  election  for 
a  mayor.  The  court's  judgment  was  in  favor  of  the  right  to  amove. 
Although  there  might  have  been  a  previous  conviction,  yet  this  being  a 
great  offence  against  the  duty  of  his  office,  the  corporation  might  amove 
without  a  conviction.  In  Rex  v.  Derby,  Cas.  Temp.  Hardw.  155,  Lord 
Hardwicke  mistook  the  above  case  on  this  point,  and  inclined  to  think 
there  ought  to  be  a  previous  conviction.  And  such  seemed  alsb  to  be  the 
inclination  of  Holt,  C.  J.,  in  Rex  v.  Chalke,  Comb.  397,  where  the  removal 
was  before  conviction,  for  criminally  razing  entries  in  the  corporation 
books  which  were  at  first  proper,  but  the  point  was  not  decided.  In  Had- 
dock's Case,  T.  Raym.  439,  the  amotion  was  for  riotously  assembling  ana 
assaulting  several  corporators,  thereby  impeding  the  business  of  the  cor- 
poration. It  was  considered  that  the  offence  was  two-fold :  one  against  the 
duty  of  his  office  as  a  corporator:  the  other  (wholly  disconnected)  of  a  riot. 
And  as  he  might  be  guilty  of  one  and  yet  be  acquitted  the  other,  the  cor- 
poration might  amove  without  conviction,  and  the  case  is  said  to  be  dif- 
ferent from  that  of  Chalke  (supra),  for  there  the  officer  could  not  have  been 
guilty  of  the  offence  at  law  without  at  the  same  time  having  been  guilty  of 
a  breach  of  his  duty.  The  cases  decided  are  considered  to  favor  this  view, 
viz:  if  the  act  is  criminal  and  single  in  its  nature,  so  that  a  conviction  or 
acquittal  in  the  courts  of  law  will  necessarily  determine  the  guilt  or  inno- 


310  MUNICIPAL    CORPORATIONS.  [Oh.  IX. 

§  190.  Principle  and  sonnd  policy  require  that  the  im- 
plied power  of  removal  for  offences  against  the  corporation 
be  restricted  to  acts  of  a  serious  nature  directly  affecting 
the  rights  and  interests  of  the  corporation.1  Causes  for  re- 
moval have,  in  some  instances,  been  held  sufficient  in  Eng- 
land which  would  not,  probably,  be  so  regarded  in  this 
country.  *  The  principal  English  cases  are  given  in  the  note. 
The  sufficiency  and  reasonableness  of  the  cause  of  removal 
are  questions  for  the  courts.2 

cence  of  the  party,  there  must  be  a  conviction,  but  otherwise  there  may  be 
a  removal  without,  or  independent  of,  a  conviction.  Buller's  N.  P.  206; 
Willc.  249,  250,  251,  252;  Glover,  331,  338;  Grant,  240;  2  Kyd,  88-94, 
where  the  prior  cases  are  digested  and  stated.  Lord  Mansfield,  in  Rex  v. 
Richardson,  1  Burr.  538,  leaves  the  point  untouched.  A  removal  for  a  riot 
in  the  council  chamber,  without  a  previous  conviction,  is  said  to  have  been 
held  good.  Rex  v.  Yates,  Style,  cited  8  Mod.  101.  See,  further,  Earle's 
Case,  Carth.  173;  Rex  v.  Wells,  4  Burr.  1999;  Regina  «.  Newberry,  1  Q.  B. 
751 ;  2  Bac.  Abr.  (Bouv.  ed.)  476,  and  cases  cited. 

i  Evans  v.  Philadelphia  Club,  50  Pa.  St.  107;  Butch.  B.  Ass.,  35  Pa.  St. 
151;  38  lb.  278;  Society,  <fcc.  v.  Commonwealth,  52  Pa.  St.  125;  Common- 
wealth v.  Philadelphia  Society,  5  Binn.  486 ;  State  v.  Common  Council,  9 
Wis.  254;  Mayor,  &c.  v.  Geisel,  19  Ind.  344;  Same  v.  Wright,  lb.  346. 

2  Rex  v.  Andover,  3  Salk.  229.  Poverty  of  alderman,  so  that  he  could 
not  pay  taxes,  sufficient  cause  for  amoving  him:  lb.  ;  but  not  applicable 
here.  But  bankruptcy  insufficient  cause  of  amotion  of  councilman.  Rex  v. 
Liverpool,  2  Burr.  723 ;  see  Rex  v.  Chitty,  5  Ad.  &  E.  609.  Total  desertion, 
of  duties  of  office  sufficient  cause.  Buller's  N.  P.  206 ;  Rex  <o.  Richardson,  1 
Burr.  541.  When  absence  and  non-attendance  upon  meetings,  and  neglect  of 
duty,  will  be  sufficient  cause.  See  Rex  v.  Richardson,  supra  ;  Rex  v.  Wells, 
4  Burr.  2004;  1  Hawk.  P.  C.  chap.  LXVI.  sec.  1,  as  to  official  neglect  of 
duty ;  approved  by  Lord  Mansfield,  in  case  last  cited ;  Lord  Bruce's  Case,  2 
Stra.  819,  and  notes;  Rex  v.  Ipswich,  2  Ld.  Raym.  1233;  S.  C,  Salk.  443; 
Buller's  N.  P.  206,  207 ;  Lord  Hawley's  Case,  1  Vent.  146 ;  Rex  v.  Harris,  1 
Barn.  &  Ad.  936;  Queen  v.  Mayor,  &c.  of  Pomfret,  10  Mod.  107;  2  Kyd,  65 
et  scq.,  wher-  the  older  cases  are  stated.  Willc.  255-264;  Angell  &  Ames, 
sec.  427,  giving  summary  of  English  cases.  Much  depends  upon  the  cause 
of  the  neglect,  and  whether  the  effect  is  to  obstruct  or  hinder  the  business 
of  the  corporation  or  officer  from  being  done. 

Habitual  drunkenness,  disqualifying  from  the  performance  of  duty,  is  a 
sufficient  cause  to  remove  an  alderman  or  officer  charged  with  magisterial 
functions.  Rex  v.  Taylor,  3  Salk.  231 ;  1  Rnlle,  409 ;  3  Bulst.  190.  But 
casual  intoxication,  or  being  drunk  by  accident,  is  not  a  sufficient  cause,  for 
the  reason  (charitably  allowed)  that  this  is  likely  to  happen  to  the  best 


Ch.  IX]  AMOTION    AND     DISFRANCHISEMENT.  3H 

§  191.  Respecting  the  proceedings  to  amove,  it  has 
already  been  observed,  that  they  must  be  had  by  and 
before  the  authorized  body  duly  assembled,  in  conformity 
with  the  rules  on  that  subject,  which  are  elsewhere  stated.1 

Rex  v.  Taylor,  supra,  A.  D.  1616.     Old  age  is  insufficient.     Bac.  Abr.  Corp. 
E.  9;  Hazard's  Case,  2  Rolle,  11. 

Mere  threats  or  attempts,  no  injury  resulting,  not  sufficient.  Bagg's  Case, 
11  Coke,  93.  Insulting  language,  or  libel  upon  mayor  or  officers,  held  in- 
sufficient, on  the  ground  that  personal  offences  are  to  be  punished  by  law, 
and  not  by  the  corporation.  Rex  v.  Oxford,  Palm.  455;  Bagg's  Case,  11 
Coke,  93,  96,  97.98,  99;  Clark's  Case,  2  Cro.  506;  Buller's  N.  P.  203;  Rex 
o.  Lane,  Fortesc.  275;  S.  C,  11  Mod.  270;  Earle's  Case,  Carth.  174;  Willc. 
261,  pi.  680.  See  Regina  v.  Rogers,  2  Ld.  Raym.  777;  Lines  v.  Wylie,  1 
Carr.  &  P.  257;  Regina  v.  Treasury,  10  Ad.  &  E.  374;  2  Perr.  &  D.  498. 

Official  misconduct,  amounting  to  misdemeanor,  has  been  before  men- 
tioned, and  the  cases  cited.  The  misconduct  must,  it  seems,  specially  relate 
to  the  execution  of  the  office.  Rex  v.  Wells,  4  Burr.  1999;  see  Regina  v. 
Newberry,  1  Q.  B.  751.  If  the  same  person  hold  two  offices,  misconduct 
with  respect  to  ope  will  authorize  removal  from  that  one,  but  not  from  both ; 
but  if  the  offence  is  against  the  duties  of  both,  the  removal  may  be  from 
both.  Rex  v.  Chalke,  1  Ld.  Raym.  226;  S.  C.  5  Mod.  257;  Rex  v.  Doncaster, 
2  Ld.  Raym.  1566;  S.  O,  1  Barnard.  265;  Rex  v.  Wells,  4  Burr.  1999;  Rex 
e.  Harris,  1  B.  &  Ad.  936.  Misemployment  of  corporate  funds  in  his  custody 
is  not  sufficient  cause  of  amotion,  though  generally  it  is  good  cause  of  sus- 
pension from  a  financial  office,  for  the  court  will  not  grant  a  mandamus  to 
restore  until  the  accounts  are  made  up  and  submitted  to  the  corporation. 
Rex  v.  Chalke.  1  Ld.  Raym.  266;  S.  C,  5  Mod.  259;  Rex  v.  London,  2  Term 
R.  182;  Willc.  262,  pi.  685;  Angell  v.  Ames,  sec.  428.  On  principle,  it  may 
be  suggested  that  if  such  a  thing  as  an  implied  power  of  amotion  exists  at 
all,  it  should  extend  to  a  case  where  the  financial  officer  of  a  corporation  ia 
misemploying  its  funds  intrusted  to  his  safe-keeping. 

1  Rex  v.  Taylor,  3  Salk.  231 ;  Rex  v.  Sandys,  2  Barnard.  302 ;  Taylor  v. 
Gloucester,  1  Roll.  409;  S.  C,  3  Bulst.,  190;  Rex«.  Chalke,  1  Ld.  Raym.  226; 
2  Kyd,  57;  Grant,  245,  275;  Willc.  264;  pi.  691;  lb.  266;  pi.  698.  Neces- 
sity for  vote  or  corporate  act,  declaring  the  removal  or  expulsion.  Com- 
monwealth v.  Pennsylvania,  &c.  Institute,  2  Serg.  &  Rawle,  141 ;  Common- 
wealth v.  German  Society,  15  Pa.  St.  251;  Stadler  v.  Detroit,  13  Mich.  346. 

Where,  by  statute,  the  mayor,  recorder,  and  an  alderman  were  constitu- 
ted a  body  to  try  charges  against  policemen  appointed  by  the  corporation, 
with  power  to  suspend  or  remove,  the  presence  of  the  mayor  is  essential  to 
the  constitution  of  the  legal  body,  and  if  one  act,  in  the  trial  of  such  a 
charge,  as  mayor,  who  is  not  such  de  jure  [or  de  facto],  tho  order  of  removal 
is  void.  Hadley  v.  Mayor,  &c,  33  N.  Y.  603;  see  supra,  sec.  182.  Special 
provision  of  charter  construed  to  give  the  power  of  removal  to  the  mayor 
and  council,  and  not  to  the  council  alone.  Charles  v.  Hoboken,  3  Dutch. 
(N.  J.)  203. 


312  MUNICIPAL    CORPORATIONS.  [Ch,  IX. 

The  proceeding  in  all  cases  where  the  amotion  is  for  cause, 
is  adversary  or  judicial  in  its  character  ;  and  if  the  organic 
law  of  the  corporation  is  silent  as  to  the  mode  of  procedure, 
the  substantial  principles  of  the  common  law  as  to  proceed- 
ings affecting  private  rights  must  be  observed.1 

§  192.  And  first,  the  officer  is  entitled  to  a  'personal 
notice  of  the  proceeding  against  him  and  of  the  time  when 
the  trial  body  will  meet.  It  is  not  necessary  that  the 
notice,  citation,  or  summons  set  out  the  charges  in  detail, 
but  it  should  contain  the  substantial  fact  that  a  proceeding- 
to  amove  is  intended.2  The  analogies  of  the  ordinary  pro- 
cedure in  the  courts  of  the  State  (in  the  absence  of  statute 
or  by-law)  may  be  followed  respecting  such  details  as  the 
notice  or  summons,  mode  of  service,  &c.  Notice  may  be 
dispensed  with:  1st.  By  appearance  and  answer  to  the 
charges.3     2d.  By  a  total  desertion  of  the  place,4  so  that  it 

1  State  v.  Bryce,  7  Ohio,  part  II.  pp.  414,  416,  1836.  "  This  proceeding," 
(amoval  of  a  trustee  of  the  university)  "is  essentially  adversary;  the  jus- 
tice of  the  common  law  permits  no  investigation  of  facts  which  may  be 
followed  by  a  loss  of  a  right  or  by  the  infliction  of  a  penalty,  to  be  con- 
ducted ex  parte."  1  b.,  per  Lane,  J.  Murdock  v.  Academy,  12  Pick.  244; 
State  v.  Trustees,  &c,  5  Ind.  77.  Charter  mode,  if  prescribed,  must  be  pur- 
sued. 1  b. ;  Bacher's  Case,  20  Pa.  St.  425 ;  see  People  v.  Bearfield,  35  Barb. 
254;  State  v.  Common  Council,  9  Wis.  254;  Madison  v.  Korbly,  32  Ind.  74  't 
Tompert  v.  Lithgow,  I  Bush  (Ky.)  176,  1866. 

8  Queen®.  Saddlers'  Co.,  10  House  of  Lords  Cases,  404;  State  v.  Bryce, 
supra;  Rex  v.  Richardson,  1  Burr.  540;  Rex  v.  Doncaster,  2  Burr.  738;  see 
1  B.  &  Ad.  942;  Rex  v.  Liverpool,  2  Burr.  731;  Bagg's  Case,  11  Rep.  99  a; 
Rex  v.  Wilton,  5  Mod.  259  ;  Exeter  v.  Glyde,  4  Mod.  37  ;  Rex  v.  Ipswich,  2 
Ld.  Rayin.  1240 ;  Willc.  264,  265  ;  Innes  v.  Wylie,  1  C.  &  K.  257;  South  P. 
R.  Co.,  5  Ind.  165;  People  v.  Benevolent  Society,  24  How.  Pr.  216;  Dela- 
cey  v.  Neuse,  &c.  Co.,  1  Hawks,  274;  Commonwealth  v.  Pennsylvania 
Benef.  Institute,  2  Serg.  &  Rawle,  141 ;  Society  v.  Vandyke,  2  Whart.  309. 

3  Willc.  264 ;  Rex  v.  Wilton,  2  Salk.  428 ;  Rex  v.  Ipswich,  2  Ld.  Raym. 
1240  ;  Rex  v.  Feversham,  8  Term  R.  356  ;  Rex  v.  Carmathen,  1  Maule  &  Sel. 
697 ;  S.  P.  Commonwealth  v.  Pennsylvania  Benef.  Institute,  2  Serg.  & 
Rawle,  141. 

4  Willc.  265,  266  ;  Grant,  245 ;  Rex  v.  Harris,  1  B.  &  Ad.  936 ;  Rex  v. 
Shrewsbury,  Cases  Temp.  Hardw.  151 ;  7  Mod.  202 ;  Rex  v.  Toneboy,  2  Ld. 
Raym.  1275  ;  11  Mod.  75  ;  Rex  v.  Grimes,  5  Burr.  2601  ;  Rex  v.  Leicester,  4 
Burr.  2089. 


Ch.  IX.]  AMOTION    AXD     DISFRANCHISEMENT.  31 3 

is  not  practicable  to  give  the  notice,  as  where  the  officer  has 
permanently,  not  temporarily,  left  the  municipality  and 
resides  constantly  elsewhere  with  his  family.  Though  he 
may  have  been  absent  or  left  the  borough,  yet  if  he  return 
and  be  in  the  place  at  the  time  of  the  amotion,  he  is  entitled 
to  notice.1  If  the  amotion  be  for  good  cause,  such  as  con- 
viction of  an  infamous  crime,2  or  the  repeated  declaration 
of  the  officer  that  he  would  not  discharge  the  duties  of  his 
office,3  while  it  would  be  more  regular  to  give  the  notice1, 
yet  its  omission  will  not  entitle  him  to  a  mandamus  to  be 
restored  ;  for  if  restored  he  could  be  amoved  again,  and  the 
courts  will  not  order  a  restoration  where  they  can  see  that 
there  is  good  ground  of  removal,  and  that  the  order  to 
restore  would  be  without  practical  and  useful  effect.4  With 
these  exceptions,  the  party  is  entitled  to  notice  01  the  inten- 
tion to  amove,  so  that  he  may  have  full  and  fair  opportunity 
to  be  heard  in  his  defence. 

§  193.  There  must  be  a  charge,  or  charges,  against  him, 
specifically  stated,  with  substantial  certainty ;  yet  the 
technical  nicety  required  in  indictments  is  not  necessary.6 
And  reasonable  time  and  opportunity  must  be  given  to 
answer  the  charges  and  to  produce  his  testimony  ;  and  he 
is  also  entitled  to  be  heard  and  defended  by  couusel,  and  to 
cross-examine  the  witnesses,  and  to  except  to  the  proofs 
against  him."    If  the  charge  be  not  denied,  still  it  must,  if 

1  Rex  v.  Leicester,  4  Burr.  2089. 

2  Angell  &  Ames  Corp.  sec.  422,  where  this  opinion  is  expressed ;  Grant, 
265  ;  Rex  v.  Chalke,  1  Ld.  Rayni.  226. 

3  Rex  v.  Axbridge,  Cowp.  523  ;  see  2  Term  R.  182;  Grant  Corp.  245. 

4  Rex  «.  Griffiths,  3  B.  &  Aid.  735 ;  see  Blagrave's  Case,  2  Sid.  6,  49,  72 ; 
Rex  v.  Rowe,  1  Show.  188  ;  S.  C,  Carth.  199;  Grant,  Corp.  245.  If  one 
irregularly'  amoved  for  good  cause  be  restored  by  mandamus,  he  may  be 
again  amoved  by  regular  proceedings  de  novo.  Taylors.  Gloucester,  3  Bulst. 
190 ;  Rex  v.  Ipswich,  2  Ld.  Raym.  1283.  In  such  case  the  office  is  vacated 
from  the  time  of  the  second  amotion ;  the  proceedings  do  not  relate  back  to 
the  former  irregular  amotion.     Willc.  269,  pi.  707. 

6  Tompert  v.  Lithgow,  1  Bush  (Ky.)  176,  1866;  Rex  v.  Lyme  Regis 
Doug.  174;  Bagg's  Case,  11  Co.  99  a;  S.  C,  1  Roll.  225;  Glover,  334; 
Willc.  267. 

6  State  v.  Bryce,  7  Ohio,  part  II.  p.  414,  1836 ;  Rex  v.  Richardson,  1  Burr. 
540;  Rex  v.  Liverpool,   2  Burr.   734;    Murdock  v.  Academy,  12  Pick.  244; 


314 


MUNICIPAL     CORPORATIONS. 


Ch.  IX 


not  admitted,  be  examined  and  proved.'  Where  the 
specific  charge  stated  is  insufficient  to  justify  the  removal, 
or  where  the  removal  is  erroneous  and  no  good  and  suffi- 
cient ground  therefor  appears,  the  officer  is  entitled  to  a 
mandamus  to  restore  Mm?  But  where  the  proceedings 
are  in  conformity  with  the  charter,  and  are  regular,  the 
sentence  will  not  be  inquired  into  collaterally,  nor  its  merits 
examined  by  mandamus  or  action.8 

§  194.  If  the  amotion  be  legal  and  authorized,  the  office 
becomes  ipso  facto  vacant  from  the  time  the  amotion  is  de- 
clared, and  another  person  may  be  elected  or  appointed  to 
fill  it.  If  the  removed  officer  afterward  continues  to  act  he 
is  a  mere  usurper,  and  may  be  ousted  on  quo  warranto  and 
punished.  Amotion  from  one  office  does  not,  of  course, 
affect  the  party's  title  to  another.4 

where  the  requisites  of  a  valid  proceeding  to  amove  are  stated.  Rex  v. 
Chalke,  1  Ld.  Raym.  226 ;  Rex  v.  Derby,  Cas.  Temp.  Hardw.  154. 

1  Rex  v.  Feversham,  8  Term  R.  356  ;  Harman  v.  Tappenden,  1  East,  562 ; 
Willc.  267 ;  Glover,  334 ;  Murdock  v.  Academy,  12  Pick.  244.  A  municipal 
officer,  when  removed  by  the  corporation  appointing  him,  is  entitled  to 
actual  notice  of  his  removal,  and  to  compensation  until  he  receives  such 
notice.     Jarvis  v.  Mayor,  &c.  of  Nev?  York,  2  N.  Y.  Leg.  Obs.  396. 

2  Rex  v.  Ipswich,  2  Ld.  Raym.  1240 ;  Madison  v.  Korbly,  32  Ind.  74, 
1869;  Commonwealth  «.  German  Society,  15  Pa.  St.  251,  1850;  State®. 
Jersey  City,  1  Dutch.  (N.  J.)  536.  The  restoration  puts  him  in  the  same 
situation  that  he  was  before  the  attempted  removal.  Willc.  269 ;  post,  sec. 
683. 

3  Society,  &c.  v.  Commonwealth,  52  Pa.  St.  125,  1866;  People  v.  Bear- 
field,  35  Barb.  254.  Though  the  amotion  be  illegal,  the  officers  who  took 
part  in  it  are  not  personally  liable,  unless  both  malice  and  want  of  probable 
cause  be  shown.  Harmen  v.  Tappenden,  3  Espin,  278;  S.  C,  1  East,  555  ; 
Ferguson  v.  Earl  of  Kinnonl,  9  CI.  &  F.  289. 

Jurisdiction  as  to  the  election  and  amotion  of  officers  in  corporations,  when 
not  changed  by  statute,  belongs  to  the  Common  Law  Courts  and  not  to 
Equity.  Attorney  General  <o.  Earl  Clarendon,  17  Ves.  491;  Dyer,  332; 
Cochran  v.  McCleary,  22  Iowa,  75.     Ante,  sec.  141.     Post,  sec.  213. 

4  Jay's  Case,  1  Vent.  362 ;  Symmers  v.  Regem,  Cowp.  503 ;  Willc.  268, 
pi.  704;  Rex  v.  Doncaster,  2  Ld.  Raym.  1566;  1  Barnard.  265;  Rex  v. 
Chalke,  1  Ld.  Raym.  226.  Mr,  Willcock,  267,  pi.  704,  whose  language  ia 
adopted  by  Glover  (Corp.  334),  states  that,  if  a  person  legally  amoved  con- 
tinues to  act,  he  is  a  mere  usurper,  and  that  "all  corporate  acts  in  which  he 
has  concurred  are  equally  void,  as  though  he  had  never  been  elected  or 
admitted."     But  if  he  is  permitted  to  act  after  amotion,  it  would  probably 


Oh.  IX.]  AMOTION    AND    DISFRANCHISEMENT.  315 

t>e  considered,  in  this  country,  that  his  acts  would,  as  to  third  persons,  oe 
valid,  like  those  of  an  officer  de  facto.  If  the  removal  he  unauthorized.  Mr. 
Willcock  states  the  rule  to  be,  "that  all  corporate  acts  in  which  he  has 
concurred  between  the  moment  of  his  removal  and  restitution  are  of  equal 
validity  as  if  he  had  never  been  amoved,"  &c.  Willc.  269,  pi.  707.  If  he 
was  regularly  present  and  concurred,  it  can  well  be  seen  how  this  should  be 
so;  but  his  concurrence  when  not  regularly  acting,  or  when  a  de  facto  suc- 
cessor has  taken  his  place  and  is  acting,  would  not  seem  to  alter  the  legal 
quality  of  the  act.  In  this  country  the  acts  of  de  facto  officers  are  every- 
where considered  valid  as  respects  the  public.  Post,  sees.  214,  716,  note; 
Cushing  v.  Frankfort,  57  Maine,  541. 


316 


MUNICIPAL     CORPORATIONS. 


[Ch.  X. 


CHAPTER  X. 

Corporate  Meetings. 

§  195.  The  subject  of  Corporate  Meetings  will  be  con- 
sidered under  the  following  general  heads  : — 

1.  Common  Law  Requisites  of  a  Valid  Corporate  Meet- 
ing—sees. 196-199. 

2.  Notice  of  Corporate  Meetings  at  Common  Law  and 
Under  the  English  Municipal  Corporations  Act — sees.  200- 
203. 

3.  New  England  Town  Meetings  ;  Requisites  of  Notice 
and  Power  of  Adjournment — sees.  204-207. 

4.  Constitution  and  Meetings  of  Councils,  or  of  Select 
Governing  Bodies,  and  herein  of  Quorums  and  Majorities  ; 
Of  Integral  Parts  ;  and  of  Stated,  Special,  and  Adjourned 
Meetings — sees.  208-225. 

5.  Mode  of  Proceeding  when  Convened — sees.  226-230. 

Common  Law  Requisites  of  a  Valid  Corporate  Meeting. 

§  196.  As  respects  their  mode  of  action,  municipal  cor- 
porations in  this  country  are  of  two  general  classes.  In 
the  one,  as  in  the  organization  of  towns  in  the  New  England 
states,  heretofore  adverted  to,  all  of  the  qualified  inhabitants 
meet,  act,  and  vote,  in  person.1  In  the  other,  which  is  the 
kind  that  prevails  generally  throughout  the  states,  and  even 
in  many  of  the  larger  places  in  New  England,  the  affairs  of 
the  town  or  city  are  administered  by  a  select  or  representa- 
tive body,  usually  denominated  the  Council,  and  which  is 
elected  by  the  qualified  voters  of  the  incorporated  place, 
not  assembled  together  in  a  meeting,  but  at  an  election, 
where  each  elector  votes  separately  and  by  ballot.8 

§  197.  The  latter  class  of  corporations  are  properly 
municipal.     The  former  class  are  not  so  strictly  municipal 


1  Ante,  chap.  II.  sec.  11. 
•  Ante,  chap.  IT.  sec.  11  et 


seq.;  ante,  chap.  TV. 


Ch.  X.]  CORPORATE    MEETINGS.  317 

as  they  are  public  in  their  character.1  Where  there  is  a 
council  or  governing  body,  the  inhabitants  or  voters,  in 
their  natural  capacity,  have  no  power  to  act  for  or  bind  the 
corporation,  but  the  corporation  must  act,  and  can  be  bound 
only,  through  the  medium  of  this  body.  Therefore,  au- 
thorized acts  done  by  the  council  are  not  their  acts,  but  those 
of  the  corporation.  The  council  is  a  body  which  is  con- 
stantly changing  ;  it  is  simply  the  agent  of  the  corporation. 
But  its  members,  it  has  been  well  observed,  are  not  only  not 
the  municipal  corporation,  but  are  not  even  a  corporation.' 
Whether  the  corporation  be  of  the  one  class  or  the  other, 
Us  affairs  must  be  transacted  at  a  corporate  meeting,  in 
the  one  case  of  the  qualified  inhabitants,  and  in  the  other  of 
the  members  of  the  council  or  governing  body,  duly  con- 
vened at  the  proper  time  and  place,  and  upon  due  notice  in 
cases  where  notice  is  requisite.' 

§  198.  In- England,  prior  to  the  General  Municipal  Cor- 
porations Act  of  1835, 4  the  requisites  of  a  valid  corporate 
meeting  depended  upon  the  constitution  of  the  particular 
corporation  under  its  charter  or  prescriptive  usage.  To 
constitute  a  corporate  assembly  there  must,  at  common  law, 
be  present,  the  mayor  or  other  head  -officer  (he  being  con- 
sidered an  integral  part  of  the  corporation,*  in  whose  ab- 
sence no  valid  corporate  act  could  be  done),  a  majority  of 
the  members  of  each  select  or  definite  class  (these  classes 
being  also  considered  integral  parts),  and  some  members  of 
the  indefinite  body  (indefinite  in  point  of  numbers)  usually 
styled  the  commonalty,  and  of  each  of  the  indefinite  classes 
if  there  were  more  than  one.*    If  there  were  no  indefinite 

'  Ante,  chap.  I,  sec.  0 ;  ante,  chap.  II.  sees.  10,  10  a,  and  note. 

1  Regina  v.  Paramore,  10  Ad.  &  El.  286 ;  see  Regina  v.  York,  2  Queen's 
B.  850;  Mayor*.  Simpson,  8  Queen's  B.  73.     Ante,  sec.  19. 

'  Dey  v.  Jersey  City,  19  N.  J.  Eq.  412,  1869;  Baltimore  v.  Poultney,  25 
Md.  18,  1866. 

*  Ante,  chap.  III.  sec.  16  et  seq. 

*  Ante,  chap.  III.  sec.  16.  Further  as  to  mayor,  see  ante,  chap.  DL 
relating  to  Municipal  Elections  and  Officers,  sec.  147. 

8  Willc.  52,  53,  66;  Rex  v.  Atkyns,  3  Mod.  23;  1  Rol.  Ab.  514;  Rex  v. 
Carter,  Cowp.  59;  Rex  v.  Smart,  4  Burr.  2143;  Rex  v.  Gaborian,  11  East 


318  MUNICIPAL     CORPORATIONS.  [Ch.  X. 

class,  and  the  governing  body  consisted  of  a  select  or  definite 
class,  the  common  law  requisite  of  a  valid  corporate  as- 
sembly is,  that  a  majority  of  the  select  class  must  be  present, 
and  if  there  was  more  than  one  such  class,  then  a  majority  of 
each  of  the  select  classes  of  which  the  corporation  is  consti- 
tuted ;  and  the  presence  of  the  mayor  at  a  select  assembly 
of  this  kind  is  not  necessary,  unless  it  is  expressly  required.' 
But  where  a  common  council  exists  (which,  in  contempla- 
tion of  the  ancient  law,  is  a  meeting  of  the  body  at  large, 
or  those  of  them  who  thought  proper  to  attend,  or  were  con- 
sidered by  their  fellow  freemen  the  men  best  fitted  to  at- 
tend), though  such  council  has  become  a  select  or  definite 
class,  there  the  presence  of  the  mayor  or  head  presiding 
officer  is  necessary  to  a  valid  assembly,  though  such 
presence  be  not  required  by  the  charter.3 

§  199.  A  majority  of  each  definite  part  means  a  ma- 
jority of  the  number  of  members  of  which  that  part  con- 
sists, not  merely  a  majority  of  the  existing  members  of  the 
part;  but  if  the  act  is  to  be  done  by  an  indefinite  body 
alone,  it  is  valid  if  done  at  a  meeting  duly  convened, 
although  but  a  small  fraction  of  the  whole  body  at 
large  be  present.  But  while  the  presence  of  a  majority  of 
each  definite  integral  part  was  necessary  to  a  valid  corporate 
meeting,  yet  it  is  settled  law  that  a  majority  of  those 
present,  when  legally  assembled,  will  bind  the  rest.*    Not 

87,  note  ;  Rex  v.  Morris,  4  East,  26  ;  Rex  v.  Bellringer,  4  Term  R.  823 ;  Rex 
v.  Miller,  6  lb.  278;  Rex  v.  Varls,  Cowp.  250;  Rex  v.  Monday,  lb.  539. 

1  See  authorities  cited  in  the  last  note. 

a  Willc.  67. 

»  Rex  v.  Bellringer,  4  Term  R.  810,  1792,  and  cases  cited ;  Rex  v.  Miller, 
6  lb.  268 ;  Rex  v.  Monday,  Cowp.  521,  538 ;  Rex  v.  Devonshire,  1  Barn.  & 
Cress.  609 ;  Rex  v.  Bower,  lb.  492 ;  Rex  v.  May,  4  B.  &  Ad.  843 ;  Rex  v. 
Headley,  7  Barn.  &  Cress.  496;  Willc.  216,  pi.  546;  Blacket  v.  Blizard,  9 
Barn.  &  Cress.  851;  Ex  parte  Rogers,  7  Cow.  526,  1827;  lb.  note  a,  764; 
Ex  parte  Willcocks,  7  Cow.  402,  and  note  462,  463,  1827 ;  Young  v.  Buck- 
ingham, 5  Ohio,  485,  489,  1832;  Buell  ».  Buckingham,  16  Iowa,  284,  1864, 
and  cases  cited  ;  State  v.  Deliesseline,  1  McCord  (South  Car.)  52,  1821 ; 
State  v.  Huggins,  Harper  (South  Car.),  94,  1824 ;  Baker  v.  Young,  12  Gratt. 
(Va.),  303,  1855,  approving  Willc.  216,  pi.  546;  Labourdette  v.  Municipal- 
ity, 2  La.  An.  527,  1847;  Kingsbury  v.  School  District,  21  Met.  99,  1846; 
Damon  v.  Granby,  2  Pick.  345,  355, 1824 ;  Coles  v.  Trustees,  &c.  of  Williams- 
burg, 10  Wend.  658,  1833;  2  Kent  Com.  293;  Angell  &  Ames  Corp.  sec.  501. 


Ch.  X.]  NOTICE     CF     CORPORATE    MEETINGS.  319 

only  did  the  law  of  the  old  corporations  in  England  require 
the  presence  of  a  majority  of  the  members  of  each  definite 
integral  part,  but  it  went  to  the  extreme  length  of  holding 
that  where  the  presence  of  the  mayor  was  necessary,  he 
must  be  the  legal  mayor,  and  if  he  be  merely  an  officer  de 
facto,  and  afterwards  be  ousted  on  quo  toarranlo,  all 
corporate  acts  done  under  the  sanction  of  his  office  are 
voidable.1  By  reason  of  the  change  in  the  constitution  of 
municipal  corporations  in  England,  wrought  by  the  Cor- 
porations Act  of  1835,  many  of  the  rules  respecting  corporate 
meetings  are  no  longer  applicable,  though,  as  we  shall  see, 
some  of  them  still  are.  Under  that  statute  the  corporation 
acts,  and  can  only  act,  through  the  council  ;  and  it  is  pro- 
vided that  all  questions  shall  be  decided  by  a  majority  of 
all  the  councillors  present,  including  questions  of  adjourn- 
ment ;  that  one-third  part  of  the  number  of  the  whole 
council  shall  be  a  quorum  ;  that  the  mayor,  if  present,  shall 
preside,  and  if  absent,  that  a  presiding  officer  shall  be 
chosen,  who  shall  have  a  second  or  casting  vote.2 

Notice  of  Corporate  Meetings  at  Common  Law,  and  under 
the  English  Municipal  Corporations  Act. 

§  200.  Due  notice  of  the  time  and  place  of  a  corporate 
meeting  is,  by  the  English  law,  essential  to  its  validity,  or 
its  power  to  do  any  act  which  shall  bind  the  corporation. 
Respecting  notice,  the  courts  in  England  adopted  certain 
rules,  which,  since  they  form  the  basis  of  much  of  the 
statute  law  in  this  country  upon  the  subject,  and  have,  in 
the  main,  been  followed  by  our  courts,  and  are  founded  on 
reason,  may  advantageously  be  here  mentioned.  All  cor- 
porators are  presumed  to  know  of  the  days  appointed  by 
the  charter,  statute,  usage,  or  by-laws,  for  the  transaction 
of  particular  business,  and  hence,  no  notice  of  such  meet- 
ing for  the  transaction  of  such  business  is  necessary,  or  for 
the  transaction  of  the  mere  ordinary  affairs  of  the  corpora- 
tion on  such  days,  yet  if  it  is  intended  to  proceed  to  any 

1  Rex  v.  Carter,  Cowp.  59  ;  Rex  v.  Hebden,  Anstr.  391 ;  Rex  v.  Dawes,  4 
Burr.  2279 ;  Willc.  54,  55. 

a  5  and  6  Will.  TV.  chap.  LXXVI.  sec.  69.  Rawlinson  on  Corp.  (5th  ed.) 
136.     Ante,  chap.  HI.  sees.  16,  17. 


320  MUNICIPAL    CORPORATIONS.  [Ch.  X. 

other  act  of  importance,  a  notice  is  necessary,  the  same  as 
at  any  other  time. 

§  201.  A  notice,  when  necessary,  must,  if  practicable, 
be  given  to  every  member  who  has  a  right  to  vote,  where 
the  act  is  one  to  be  done  by  a  body  consisting  of  a  definite 
class  or  classes,  and  it  must  be  given  by,  or  issued  by  order 
of,  some  one  who  has  the  authority  to  convene  a  corporate 
meeting.  But  notice  may  be  altogether  dispensed  with,  or 
its  necessity  ioaived,  by  the  presence  and  consent  of  every 
one  of  those  entitled  to  it.  It  must  be  served  personally 
upon  every  resident  member,  or  left  at  his  house.  If 
temporarily  absent,  it  may  be  left  with  his  family,  or  at  his 
house  or  last  place  of  abode.  An  order  to  serve  all  is  not 
sufficient ;  all,  if  practicable,  must  be  served,  but  if  the 
party  entitled  to  notice  has  entirely  quit  the  municipality, 
and  has  no  family  or  house  within  its  limits,  notice  is  not 
necessary.  It  must  be  served  a  reasonable  time  before  the 
hour  of  meeting,  of  which  the  court  will  judge  from  all  the 
circumstances,  including  usage. 

§  202.  The  notice  must  state  the  time  of  meeting,  and 
the  place,  if  it  be  not  the  usual  place.  It  is  not  necessary 
to  state  what  business  is  to  be  done  when  the  meeting  re- 
lates only  to  the  ordinary  affairs  of  the  corporation  ;  but 
when  it  is  for  the  purpose  of  electing  or  removing  officers, 
passing  ordinances,  and  the  like,  the  fact  should  be  stated, 
so  that  members  may  know  that  something  more  than  the 
usual  routine  of  business  will  be  transacted.  Such  great 
importance  is  attached  to  notice,  that  it  can  only  be  waived 
by  universal  consent ;  but  if  every  member  of  a  select  body 
be  present  at  a  regular  or  stated  meeting,  or  at  a  special 
meeting,  they  may,  if  every  one  consents,  but  not  otherwise, 
transact  any  business,  ordinary,  or  extraordinary,  though 
no  notice  was  given,  or  an  insufficient  notice,  but  the 
unanimity  of  consent  should  plainly  appear  from  their 
recorded  declaration,  acts,  or  conduct.  This  unanimity  is 
only  necessary  to  enter  upon  the  business ;  once  com- 
menced, the  usual  rules  which  govern  the  body  and  its 
actions  apply.  It  is  to  be  observed  that  the  foregoing  rules 
are  not  applicable  where    they  are  in  conflict  with  the 


Ch.  X.]  NOTICE     OF     CORPORATE     MEETINGS.  321 

charter,  and  hence,  if  this  requires  a  special  notice,  it  can- 
not be  waived,  even  by  consent  of  all.  The  guildhall  is  the 
proper  place  for  the  meeting  ;  if  there  be  none,  the  meeting 
should  be  at  the  usual  place  ;  and  if  at  any  other  place,  it 
should  be  stated,  to  prevent  fraud  or  surprise.  Acts  done 
at  an  unusual  place  will  be  closely  scrutinized.1 

§  203.  By  the  English  Municipal  Corporations  Act,2  the 
subject  of  meetings,  stated  and  special,  and  the  notice  and 
summons  required  are  made  matter  of  express  regulation. 
It  provides  for  every  borough  or  city  four  quarterly  meet- 
ings of  the  council  in  each  year,  to  be  held  at  a  fixed  date. 
No  notice  of  the  business  to  be  transacted  at  these  quarterly 
meetings  is  necessary  ;  but  three  days'  notice,  by  posting  on 
or  near  the  town  hall,  is  required  of  the  time  and  place  of 
every  intended  meeting.  Power  is  given  to  the  mayor  to 
call  special  meetings,  or,  on  his  refusal,  to  five  members  of 
the  council,  in  which  case,  the  notice  on  or  near  the  town 
hall  shall  state  therein  the  business  proposed  to  be  trans- 
acted at  such  meeting,  and  in  every  case  a  summons  (in  ad- 
dition to  the  notice)  must  be  left  at  the  usual  place  of  abode 
of  every  member  of  the  council,  or  at  the  premises  occupied 
by  him,  in  respect  of  which  he  is  enrolled  as  a  burgess,  at 
least  three  clear  days  before  the  meeting,  and  no  business 
can  be  tiansacted  not  specified  in  the  summons.  Power  to 
adjourn  meetings  is  expressly  conferred  upon  the  council 
by  the  same  section.3 

'  Authorities  in  support  of  the  last  and  two  preceding  sections  of  the 
text:  Willc.  chap.  I.  sec.  42,  et  seq.  Rex  v.  Hill,  4  B.  &  C.  441 ;  Rex  v. 
Liverpool,  2  Burr.  734;  Rex  v.  Doncaster,  Id.  744 ;  Rex  v.  Theodorick,  8 
East,  545;  Rex  v.  May,  5  Burr.  2682;  Rex  v.  Oxford,  Palm.  453;  Rex  v. 
Grimes,  5  Burr.  2601 ;  Kynaston  v.  Shrewsbury,  2  Stra.  1051 ;  Musgrove  v. 
Nevison,  1  Stra.  584;  S.  C.,2  Ld.  Rayrn.  1359;  Rex  v.  Mayor  of  Shrewsbury, 
Cases  Temp.  Hardw.  147 ;  Smith  v.  Darley,  2  House  of  Lords  Cases,  789 ; 
Grant  on  Corp.  154-156 ;  Glover  on  Corp.  chap.  VIII.  pp.  146-173.  Form- 
erly, the  rule  that  where  notice  was  necessary  every  member  must  be  notified, 
was  applied  only  to  the  case  of  definite  bodies,  but  it  has  more  recently 
been  declared  to  be  applicable,  both  to  select  and  indefinite  bodies  of  public 
corporations.  Rex  v.  Langhorne,  4  Ad.  &  El.  538.  See,  also,  Rex  v. 
Faversham,  8  Term  R.  356,  per  Ld.  Kenyon,  arguendo. 

2  5  and  6  Will.  IV.  chap,  LXXVI.  sec.  69.     Ante,  sees.  16,  17. 

8  In  construing  this  statute,  it  has  been  held  that  where  the  meeting  is 
21 


322  MUNICIPAL     CORPORATIONS.  [Ch.  X. 

New  England  Town  Meetings — Notice  and  Adjournment. 

§  204.  In  New  England  the  inhabitants  are  required  to 
be  notified  or  warned  of  town  meetings.  The  requisites  of 
such  notice,  and  manner  of  giving  it,  are  prescribed  by 
statute.  The  provision  is  quite  general,  that  the  articles  or 
matters  to  be  acted  up  m  shall  be  specified  or  inserted  in  the 
notice  or  warrant.  The  courts  in  those  states  concur  in 
requiring  the  statute  as  to  notice  to  be  faithfully  observed 
by  the  officers  charged  with  the  duty  of  calling  meetings. 
Meetings,  to  be  valid,  must  be  warned  or  notified  according 
to  law.  The  rule  of  the  English  courts  applied  to  indefinite 
corporate  bodies,  that  if  all  are  present  notice  may,  by 
unanimous  consent,  be  waived,1  is  not  regarded  as  applic- 
able to  the  town  meetings  of  New  England,  and  hence  a  de 
facto  meeting,  not  duly  notified,  though  attended  by  all  the 
voters  capable  of  attending,  is  not  a  valid  meeting,  and  its 
acts  are  void.2 

an  adjourned  quarterly  meeting,  notice  is  necessary  as  to  any  business 
which  was  not  actually  entered  upon  at  the  general  or  regularly  quarterly 
meeting,  but  not  otherwise;  and  hence,  a  coroner  cannot  be  elected  at  such 
an  adjourned  quarterly  meeting  without  the  notice  and  summons  which  the 
statute  requires.  Regina  v.  Grimshaw,  10  Queen's  Bench,  747,  755.  See 
Regina  v.  Thomas,  8  Ad.  &  El.  183;  Rex  v.  Harris,  1  B.  &  Ad.  936.  As  to 
notice.  Town  Council,  &c.  v.  Court,  IE.  &  E.  770 ;  Regina  v.  Whipp,  4 
Queen's  Bench,  141. 

1  Rex  v.  Theodorick,  8  East,  545;  ante,  sec.  11. 

s  Hayward  v.  School  District,  2  Cush.  419,  1848 ;  Moor  v.  Newfield,  4 
Greeul.  (Maine)  44,  1826;  School  District  v.  Atherton,  12  Met.  105,  1846; 
Little  v.  Merrill,  10  Pick.  543 ;  Perry  v.  Dover,  12  Pick.  206 ;  Reynold  v. 
New  Salem,  6  Met.  340 ;  Congregational  Society  v.  Sperry,  16  Conn.  200 ; 
Rand  v.  Wilder,  11  Cush.  294,  1853;  Stone  v.  School  District,  8  Cush.  592; 
Brewster  v.  Hyde,  7  N.  H.  206 ;  Northwood  v.  Barrington,  9  N.  H.  369 ; 
Giles  v.  School  District,  11  Fost.  304 ;  Lander  v.  School  District,  33  Maine, 
239,  1851 ;  Jordan  v.  School  District,  38  Maine,  164,  1854.  So  in  Vermont 
it  has  been  decided  that  it  cannot  be  shown,  by  parol,  to  validate  the  levy 
of  tax  by  a  meeting  not  legally  warned,  that  oil  of  the  legal  voters  of  the.  dis- 
trict were  present  at  the  meeting.  Sherwin  v.  Bugbee,  17  Vt.  337,  1845; 
distinguished  by  the  court  from  Rex  v.  Theodorick,  8  East,  543.  And  see, 
also,  Hunt  v.  School  District,  14  Vt.  300;  Pratt  ».  S  wanton,  15  Vt.  147. 
Requisites  of  notice  and  sufficiency.  Wyley  r.  Wilson,  44  Vt.  404,  1872.  A 
tax  voted  at  a  meeting  not  legally  warned-  is  illegal,  and  may  be  recovered 
back  if  the  party  did  not  pay  it  voluntarily.     Rideout  v.  School  District,  1 


Ch.  X.]  NEW     ENGLAND     TOWN    MEETINGS.  323 

§  205.  It  is,  however,  sufficient  if  the  purpose  or  object 
of  the  meeting  can  fairly  be  understood  from  the  notice  or 
warrant.1  And  where  the  statute  requires  the  time  and 
place  to  be  stated  in  the  notice,  its  requirements  must  be 
observed,  and  there  can  be  no  legal  meeting  unless  it  origin- 
ally assembles  at  the  prescribed  time  and  place.     The  law  is 

Allen  (Mass.)  232,  1861.  So  it  may  be  recovered  back  if  the  assessment  is 
void.  Gerry  v.  Stoneham,  1  Allen  (Mass.)  319,  1861 ;  Tobey  v.  Wareham,  2 
Allen  Glass.)  594.  Post,  sec.  751.  See  Massachusetts  act  of  1859,  chap. 
CXVI1I.  limiting,  in  such  cases,  the  plaintiff's  right  of  recovery  to  illegal 
excess  of  taxation. 

Authority  to  the  clerk  to  call  and  warn  "  the  annual  meetings,"  does  not 
authorize  him  to  call  and  warn  special  meetings;  and  the  acts  and  doings 
of  a  special  meeting  thus  called  are  wholly  void.  School  District  v.  Ather- 
ton,  12  Met.  105,  1846.  And  authority  "to  warn"  future  meetings  does 
not  authorize  him  "to  call"  such  meetings.  Stone  v.  School  District,  8 
Cush.  592,  1851. 

As  to  proof  of  notice,  and  the  return  of  the  person  or  officer  making  the 
warning,  and  what  it  shall  show,  see  State  v.  Williams,  25  Maine,  564,  1846, 
and  the  Massachusetts  and  Maine  decisions  therein  cited  and  commented 
on;  Christ's  Church  v.  Woodward,  21  Maine  (13  Shep.)  172,  1846;  Fossett 
v.  Bearce,  29  Maine,  523,  1849;  Bearce  v.  Fossett,  34  Maine,  575,  1852;  Jor- 
dan v.  School  District,  38  Maine,  164,  1854;  Perry  v.  Dover,  12  Pick.  206; 
Houghton  v.  Davenport,  23  Pick.  235 ;  Williams  v.  Lnnenberg,  21  Pick.  75 ; 
Briggs  v.  Murdock,  13  Pick.  305;  Rand  v.  Wilder,  11  Cush.  294,  1853; 
Cardigan  v.  Page,  6  N.  H.  182;  State  v.  Donahay,  1  Vroom  (N.  J.)  404; 
Hardcastle  v.  The  State,  3  Dutch.  (N.  J.)  352.  In  Sherwin  v.  Bugbee,  17 
Yt.  337,  the  strict  view  is  held  that  the  notice  or  warning  must  he  recorded 
by  the  clerk.  If,  as  recorded,  the  time  for  which  the  meeting  was  to  be 
holden  is  not  specified,  the  defect  cannot  be  supplied  by  parol  evidence 
that  in  the  original  warning  the  hour  for  the  meeting  was  named.  This 
decision  was  not  put  upon  the  ground  that  the  statute  expressly  required 
the  warning  to  be  recorded  (which  it  did  not),  but  upon  the  ground  that 
the  statute  intended  that  the  records  should  furnish  all  the  means  for  test- 
ing the  validity  of  the  proceedings.  See,  also,  Stevens  v.  Society,  &c,  12 
Vt.  688,  1839.  Post,  sec.  246.  Presumption  in  favor  of  legality  of  meeting 
after  lapse  of  long  time.  Peterborough  v.  Lancaster,  14  N.  H.  382,  392. 
Length  of  notice.  Hunt  v.  School  District,  14  Vt.  300;  Pratt  v.  Swanton, 
15  lb.  247. 

Under  a  statute  of  New  York,  the  notice  it  required  of  school  meetings 
held  to  be  directory  only,  and  the  want  of  notice,  when  not  fraudulently  or 
willfully  omitted,  does  not  render  the  meeting  invalid,  and  its  proceedings 
void.  Marchant  v.  Langworthy,  6  Hill  (N.  Y.)  646;  affirmed  in  error,  3 
Denio,  526.  See,  also,  Williams  v.  Larkin,  3  Denio,  114.  Ante,  sec.  229. 
1  School  District  v.  Blakeslee.  13  Conn.  227. 


324  MUNICIPAL     CORPORATIONS.  [Ch.  X. 

strictly  held  as  to  the  important  particulars  of  time  and 
place,  as  will  appear  by  the  illustrations  in  the  notes.1 

§  206.  Where  the  statute  requires  the  notice  ' '  to  specify 
the  business  to  be  done"  an  omission  to  comply  with  this 
requirement  makes  the  meeting  void,  and  it  is  held  that  a 
notice  stating,  generally,  "to  do  any  proper  business,"  is 
insufficient,  and  the  acts  and  votes  of  a  meeting  held  under 
it  are  of  no  binding  or  legal  force.2  Indeed,  the  rule  is 
general  that  where  the  statute  requires  the  business  to  be 
stated  in  the  warrant  or  notice,  this  is  absolutely  essential, 
and  the  meeting  must  be  confined  to  those  matters.3 

1  Sherwin  v.  Bugbee,  16  Vt.  439,  444,  1844.  In  reference  to  town  meet- 
ings, the  statute  of  Vermont  requires  that  the  notice  shall  be  in  writing,  and 
shall  "  specify  the  business  to  be  clone,  and  the  time  and  place  of  holding 
said  meeting."  Referring  to  this  statute,  Redfield,  J.  (in  Sherwin  v.  Bugbee, 
supra),  says:  "  We  have  no  doubt  the  place  of  holding  the  meeting  must  be 
definitely  specified.  It  would  hardly  do  to  warn  a  meeting  to  be  held  at 
some  place  in  the  district,  or  at  a  designated  village,  or  at  one  of  two  or 
more  dwelling  houses.  So,  too,  in  regard  to  time,  there  seems  to  be  a 
propriety  in  having  it  definitely  fixed.  If  the  day,  only,  is  named,  the 
question  immediately  arises,  shall  the  inhabitants  be  required  to  attend  the 
whole  day  ?  or,  when  can  the  meeting  transact  the  business  for  which  they 
meet,  so  as  to  bind  the  absent  members  ?  The  fact  that  the  meeting  ad- 
journed to  another  day  and  hour,  will  not  help  the  matter,  on  the  obvious 
principle  that  the  adjourned  meeting  could  have  no  more  authority  than 
the  original  meeting,  which  was  void." 

Where  it  appears  that  a  meeting  was  held  on  the  day  appointed,  it  will 
be  presumed  that  it  was  held  at  a  suitable  time  in  the  day,  and  pursuant  to 
the  notice.  A  meeting  should  be  opened  within  a  reasonable  time  after  the 
hour  specified;  but  what  is  such  reasonable  time,  depends  upon  circum- 
stances. School  District  v.  Blakeslee,  13  Conn.  227.  'Where  a  meeting  was 
called  at  a.  certain  school  house,  it  was  held  to  mean  within  the  walls  of  the 
building.  An  assemblage  of  some  of  the  citizens  in  the  highway  near  the 
school  house,  and  an  adjournment  to  another  place,  is  not  a  legal  meeting, 
and  its  transactions  are  not  binding,  though  the  school  house  was  locked, 
and  the  weather  cold  and  no  fire  in  the  building.  Chamberlain  v.  Dover, 
13  Maine,  466,  1836.  See,  also,  Haines  v.  School  District,  41  Maine,  246, 
1856;  Kingsbury  v.  School  District,  12  Met.  99, 1846. 

*  Hunt  v.  School  District,  14  Vt.  300,  1842;  Sherwin  v.  Bugbee,  16  Vt. 
439;  S.  C,  17  II.  337,  444,  1844.  "  Such  meetings  are  void  for  all  purposes 
of  transacting  business  not  specified  "  in  the  written  notice  required  by  the 
statute.     lb.  per  Redfield,  J. 

3  11.  Johnson  v.  Wilson,  2  N.  T.  202;  Tucker  v.  Aiken,  7  N.  H.  113; 
Baker  v.  Shepherd,  4  Fost.  208. 

By-laws  passed  at  a  town  meeting  not  duly  warned  (as,  for  example, 


Ch.  X.]  NEW    ENGLAND     TOWN    MEETINGS.  325 

§  207.  At  a  meeting  duly  constituted  and  organized,  a 
majority  of  the  members,  electors  or  corporators  present,  in 
the  absence  of  any  statute  either  conferring  or  denying  the 
power,  have  the  implied  incidental  corporate  right  to  ad- 
journ the  meeting  to  another  time,  either  on  the  same  or  to 
a  future  day,  and,  if  fairly  done,  to  another  place  within 
the  corporate  limits.1 

where  the  notice  did  not  "  specify  the  objects  "  of  the  meeting  as  required 
by  statute),  are  void.  Hayden  v.  Noyes,  5  Conn.  391,  1824 ;  Willard  v.  Kil- 
ling-worth, 8  lb.  247.  The  party  claiming  under  a  by-law  must  show  it 
was  passed  at  a  meeting  duly  warned.  8  Conn.  247,  supra.  And  must, 
perhaps,  show  all  the  essentials  of  its  validity,  such  as  the  due  passage, 
publication,  &c.     lb. 

Where  the  statute  requires  that  all  matters  to  be  acted  upon  at  the  meet- 
ing shall  be  inserted  in  the  warrant  or  notice,  a  failure  to  do  this  will  avoid 
as  to  both  parties  any  contract  that  may  be  made,  or  any  act  that  may  be 
done,  with  respect  to  a  matter  not  embraced  in  the  warrant  or  notice. 
Cornish  v.  Pease,  18  Maine  (1  Appl.)  184,  1841 ;  Spear  v.  Robinson,  29 
Maine  (16  Shep.)  531,  1849;  Little  v.  Merrill,  10  Pick.  643;  Blackburn  v. 
Walpole,  9  Pick.  97;  Torrey  v.  Millbury,  21  Pick.  64;  lb.  75;  Hasdell  v. 
Hancock,  3  Gray,  526;  Jones  v.  Andover,  9  Pick.  146,  1829;  Kingsbury  v. 
School  District,  12  Met.  99,  1846;  Rand  v.  Wilder,  12  Cush.  294,  1853.  But 
if  the  matter  is  embraced,  and  the  meeting  duly  met,  it  is  no  objection  to 
its  action  that  it  was  had  near  the  close  of  the  meeting,  and  when  a  por- 
tion of  the  voters  had  retired.  Dean  v.  Jay,  23  Maine  (10  Shep.)  117,  1843. 
Subsequent  legal  meeting  may  ratify  acts  of  previous  meeting  not  duly 
notified.  Jordan  v.  School  District,  38  Maine,  164.  By  participating  in  a 
meeting  illegally  called,  a  party  is  not  estopped  to  deny  its  legality.  School 
District  v.  Atherton,  12  Met.  105. 

1  Chamberlain  v.  Dover,  18  Maine  (1  Shep.)  466,  1836 ;  People  v.  Mar- 
tin, 1  Seld.  (N.  Y.)  22,  1851 ;  Hubbard  v.  Winsor,  15  Mich.  146  ;  Kimball 
v.  Marshall,  44  N.  H.  465,  1863;  Goodell  v.  Baker,  8  Cowen,  286.  Electors 
exclusive  judges  of  necessity  of  adjournment  of  town  meeting,  and  such  ad- 
journment to  next  day,  and  at  another  place,  in  the  town  twenty  miles  dis- 
tant, was  considered  lawful.  lb.  The  statute  provided  that  if  at  any  annual 
town  meeting  no  place  is  fixed  by  the  electors  for  the  next  annual  town 
meeting,  such  town  meeting  shall  be  held  at  the  place  of  the  last  annual 
town  meeting.  1  R.  Sts.  N.  Y.  340,  sec.  3.  Held,  in  People  v.  Martin,  1 
Seld.  22,  that  though  the  place  of  meeting  was  thus  contingently  fixed  by 
statute,  the  electors,  being  duly  assembled,  might  adjourn  it  for  the  residue 
of  the  day  to  another  place  in  the  town.  Concluding  his  opinion  in  this  case, 
Paige,  J.,  well  remarks:  "I  confess  that  I  have  had  some  difficulty  in  com- 
ing to  this  conclusion,  and  I  think  the  power  [which  is  decided  to  exist]  of 
adjourning  a  town  meeting  to  another  time  and  place  may,  under  peculiar 
circumstances,  be  oppressively  exercised,  and  lead  to  a  defeat  of  the  popu- 


326  MUNICIPAL     CORPORATIONS.  [Ch.  X. 


Constitution  and  Meetings  of  Councils  or  Select  governing 
bodies  ;  and  herein  of  Quorums  and  Majorities, 
of  Integral  Parts,    and  of  Stated,  Spe- 
cial, and  Adjourned  Meetings. 

§  208.  Unlike  the  towns  of  New  England,  in  which  all 
the  qualified  voters  meet  and  act  in  their  primary  capacity, 
the  councils  of  cities  and  towns  are  representative  bodies, 
the  number  of  whose  members  is  fixed  by  law,  and  they  are 
elected  by  the  legal  voters  of  the  incorporated  place.  This 
council  is  the  governing  body  of  the  municipal  corporation, 
and  the  corporation,  unless  it  is  otherwise  provided,  can  act 
and  be  bound  only  through,  the  medium  of  the  council.1 
The  charter  or  constituent  act  of  the  place  usually  contains 
provisions  as  to  the  constitution  of  the  council,  its  stated 
and  special  meetings,  and  the  notice  thereof  requisite  to  be 
given,  how  many  shall  constitute  a  quorum,  and  an  enume- 
ration of  its  powers.  The  usual  scheme  of  the  organization 
of  the  council  is  to  divide  the  territory  of  the  incorporated 
place  into  districts  or  wards,  the  voters  in  each  of  which 
elect  one  or  more  representatives  annually,  called  aldermen, 
or  councilmen,  and  these,  when  duly  convened,  constitute 
the  council,  over  which  the  mayor  or  head  executive  officer 
of  the  corporation  presides,  sometimes  constituting  a  mem- 
ber of  the  council,  and  in  other  instances,  having  power  to 

lar  will.  This  power  ought  not  to  be  exercised  except  in  a  case  of  extieme 
necessity."     1  Seld.  27. 

After  a  valid  adjournment,  acts  by  a  portion  of  the  voters  who  remain  are 
invalid.  Kimball  v.  Lamprey,  19  N.  H.  215.  In  Massachusetts,  an  adjourn- 
ment of  a  meeting  should  appear  of  record,  and  parol  evidence  of  an  adjourn- 
ment to  another  day  is  held  to  be  inadmissible.  Taylor  v.  Henry,  2  Pick. 
397,  1824.  See  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  309,  and  chapter  on 
Corporate  Records  and  Documents,  post,  sec.  235.  The  statute  of  New  York 
(1  R.  Sts.  342)  only  requires  the  town  meeting  to  be  kept  open  during  the 
day  time,  or  some  part  thereof,  but  not  that  it  shall  be  kept  open  during  the 
whole  and  every  part  of  the  day,  between  the  rising  and  setting  of  the  sun. 
People  v.  Martin,  1  Seld.  (K  Y.)  22,  1851. 

1  Central  Bridge  Corp.  v.  Lowell,  15  Gray,  106,  116,  1860,  where  an 
act  affecting  a  city  was,  by  its  terms,  to  take  effect  on  acceptance  by 
the  city,  it  was  held  that  the  acceptance  might  be  made  by  the  governing 
body.    II. 


Ch.  X.]  CONSTITUTION     OF     COUNCILS.  327 

vote  only  when  there  is  a  tie,  or  to  give  a  second  vote  in 
case. of  a  tie.1 

§  209.  The  doctrine  of  the  English  courts  as  to  the  old 
corporations  in  thit  country,  that  the  mayor  was  an  inte- 
gral part  of  the  corporation,  whose  presence,  unless  other- 
wise provided  in  the  charter,  was  necessary  to  a  valid  cor- 
porate meeting ;  that  during  a  vacancy  in  the  office  of 
mayor,  the  corporation  could  do  no  valid  act,  unless  ex- 
pressly empowered,  except  to  elect  another,  and  thus  com- 
plete the  body,  and  that  the  acts  of  the  corporation  under 
the  presidency  of  any  other  than  a  mayor  de  jure,  were 
voidable,  has,  it  is  believed,  no  application  to  the  office  of 
mayor  in  the  corporations  of  this  country.2 

§  210.  The  right  of  the  mayor  or  other  officer  to  preside 
over  the  meeting  of  the  council  is  a  franchise,  and  may  be 
tested  by  an  information  in  the  nature  of  a  quo  warranto,* 

1  Power  to  preside  and  give  casting  vote  at  meetings  of  a  religious  cor- 
poration construed.     People  v.  Rector,  &c,  48  Barb.  603. 

1  Infra,  sec.  222;  Welch  v.  Ste.  Genevieve,  1  Dillon  C.  C.  130,  1871. 
And  see  ante,  chap.  IX.  as  to  powers  and  duties  of  the  mayor,  sees.  147,  148. 

The  presiding  officer  of  a  town  meeting,  with  statute  authority  to  main- 
tain order,  may  make  a  valid  order,  though  it  be  by  parol  only,  for  the 
removal  of  a,  disorderly  person  who  disturbs  the  business  of  the  meeting. 
Parsons  v.  Brainard,  17  Wend.  522,  1837.  Approval  by  the  mayor  of  proceed- 
ings of  the  council  may,  by  special  requirement  of  charter,  be  essential  to 
their  validity.  Graham®.  Carondolet,  33  Mo.  262,  1862;  Kepner  v.  Com- 
monwealth, 40  Pa.  St.  124.  When  not.  State  v.  Jersey  City.  1  Vroom,  93, 
148;  see  Dey  v.  Jersey  City,  19  N.  J.  Eq.  412;  Taylor  v.  Palmer,  31  Cal.  241 ; 
State*.  Newark,  1  Dutch.  (N.  J.)  399;  post,  sec.  265,  note. 

3  Cochran  v.  McCleary,  22  Iowa,  75,  1867,  and  authorities  there  cited; 
Reynolds  v.  Baldwin,  1  La.  An.  162,  1846;  Eex  v.  Williams,  1  Burr.  402; 
Willc.  456,  pi.  337;  Rex  v.  Hertford,  1  Ld.  Raym.  426;  approved,  Common- 
wealth v.  Arrison,  15  Serg.  &  Rawle,  130.  Ante,  chap.  IX.  sec.  147.  In 
Cochran  v.  McCleary,  supra,  it  was  held  that  the  mayor,  in  cities  of  the 
second  class,  organized  under  the  General  Incorporation  Act  (Rev.  of 
Iowa,  1860,  chap.  LI.)  is  not,  ex-ojficio,  a  member  of,  nor  has  he  any  right  to 
preside  over,  the  city  council;  that  the  council  was  composed  exclusively  of 
trustees  or  aldermen,  and  elected  its  own  presiding  officer.  The  mayor  of 
New  York  is  not  a  member  of  the  common  council,  and  the  common  coun- 
cil, having  the  power  by  statute  to  appoint  to  office,  may  exercise  it  with- 
out the  concurrence  of  the  mayor,  who  has  no  veto  power  upon  the  appoint- 
ment.    Achley's  Case,  4  Abb.  Pr.  Rep.  35,  1856. 


328  MUNICIPAL     CORPORATIONS.  [Ch.  X. 

but  cannot  be  determined,  at  least,  ordinarily,  unless  by 
statute  provision,  on  a  bill  in  chancery  to  enjoin,  or  in  any 
other  indirect  or  collateral  proceeding.1 

§  211.  Who  shall  compose  the  council  or  governing 
body  of  the  corporation  is,  in  all  cases,  prescribed  by  the 
charter  or  incorporation  act,  but  the  language  used  has  been 
such  as  sometimes  to  lead  to  controversy.2  The  organic 
act  of  a  city  provided  u  that  the  intendant  of  police  shall 
have  a  seat  in  the  board  of  commissioners  [the  governing 
body  of  a  city  corporation],  and  when  present,  shall  pre- 
side therein ;  in  his  absence,  the  board  shall  appoint  a 
chairman  pro  tempore."  It  was  held  that  the  intendant 
was  thereby  constituted  one  of  the  commissioners,  and  had 
the  right  to  participate  in  making  ordinances.3     Where  the 

1  Cochran  ®.  McCleary,  22  Iowa,  75,  86,  1867;  Topping  v.  Gray,  7  Hill 
(N.  Y.)  259;  affirming  S.  C,  9  Paige,  507;  Markle  ®.  Wright,  13  Ind.  548;- 
Hullman  ®.  Honcomp,  5  Ohio,  237;  People'®.  Cook,  4  Seld.  67;  affirming 
S.  O,  14  Barb.  257 ;  Mayor  ®.  Conner,  5  Ind.  171 ;  Mosley  v.  Alston,  1  Phill. 
790;  Lord  ®.  The  Governor,  &c,  2  Phill.  740;  Peabody  v.  Flint,  6  Allen 
(Mass.)  52;  Hagner  ®.  Heyberger,  7  Watts  &  Serg.  104;  People®.  Carpenter, 
24  N.  Y.  86;  People  ®.  Draper,  15  N.  Y.  632;  People®.  Insurance  Company, 
2  Johns.  Ch.  371;  People  ®.  Same  Company  (quo  warranto),  15  Johns.  358; 
Commonwealth  ®.  Bank  (quo  warranto),  28  Pa.  289;  in  chancery,  lb.  379; 
Hughes®.  Parker,  20  N.H.  58;  Ex  parte  Strahl,  16  Iowa,  369;  Updegraff®. 
Crans,  47  Pa.  St.  103;  Facey  v.  Fuller,  23  Mich.  527;  8ee  Kerr  v.  Trego,  47 
Pa.  St.  292,  cited  infra,  sec.  213. 

2  Cochran  ®.  McCleary,  22  Iowa,  75,  1867. 

8  Raleigh  v.  Sorrell,  1  Jones  (North  Car.)  Law,  49,  1853.  In  this  case  the 
Supreme  Court  of  North  Carolina  admit  (arguendo)  that  an  officer — as,  for 
example,  the  intendant — has  no  right,  under  the  act  of  incorporation,  to  sit 
with  the  legislative  body  of  the  corporation,  but  if  he  does  so  and  acts  with 
them,  that  an  ordinance  thus  passed  will  be  void,  because  the  powers  given 
to  the  corporation  must  be  exercised  in  strict  conformity  to  the  special  del- 
egation of  authority,  and  because,  in  the  case  supposed,  the  ordinance  is 
not  passed  by  the  body  to  which  the  power  is  given;  citing  Rex  v.  Croke, 
Cowp.  26.  The  view  of  the  court  is  in  accordance  with  the  rule  of  the 
English  courts  as  applied  to  their  corporations.  Thus,  Mr.  Willcock  says: 
"  It  may  be  unnecessary  to  add,  that  whenever  a  particular  business  is  dele- 
gated to  a  select  body,  if  others  join  in  the  performance  of  it,  the  act  i3 
void;  as  if  the  mayor,  aldermen,  and  commonalty  join  in  making  a  by-law 
fljhich  is  directed  to  be  made  by  the  mayor  and  aldermen.  For  if  others 
are  allowed  to  vote,  a  by-law  might  be  established,  although  all  those  to 
whom  the  power  is  specifically  delegated  should  be  in  the  minority."    Corp. 


Ch.  X.]  CONSTITUTION     OF     COUNCILS.  329 

power  to  legislate  for  the  corporation  is  vested  in  "the 
mayor  and  councilmen,"  the  council  by  itself  cannot  regis 
late,  but  must  act  in  conjunction  with  the  mayor.  In  de- 
ciding the  point  the  court  observes  :  "If  a  simple  resolution 
[instead  of  an  ordinance]  would  be  sufficient,  yet,  before  it 
would  have  any  validity,  it  would  necessarily  have  to  be 
signed  by  the  mayor  as  a  part  of  the  law-making  power — 
the  co-ordinate  action  of  both  is  required."1 

§  212.  It  is  undoubtedly  true,  as  already  stated,  that 
t?te  corporate  authority  must  be  exercised  by  the  proper 
body.  Thus,  where  a  town  was  organized  under  a  charter 
which  vested  the  corporate  powers  of  the  place  in  a  presi- 
dent and  six  trustees,  and  subsequently  a  general  incorpo- 
ration act  was  passed  which  was  erroneously  supposed  to 
apply  to  the  town,  and  under  which  the  town  elected  differ- 
ent officers  from  those  provided  in  the  special  charter,  at  a 
different  time  and  constituting  a  different  body,  it  was  held, 
in  the  absence  of  legislative  ratification,  that  this  latter  body 
could  not  exercise  the  authority  of  the  corporation,  since 
they  were  a  body  without  any  legal  existence,  and  were  not 
the  body  authorized  to  act  for  the  corporation.  The  prin- 
ciple that  the  acts  of  de facto  officers  are  valid  was  consid- 
ered not  to  be  applicable.3 

§  213.  Where  there  are  two  bodies,  each  of  which 
claims  to  be  the  regular  organized  council,  and  is  acting  as 

68,  pi.  128;  Parry  v.  Berry,  Comyns,  269;  Rex  v.  Head,  4  Burr.  2521; 
Hoblyn  v.  Regem,  6  Bro.  P.  C.  520 ;  Rex  v.  Westwood,  4  B.  &  C.  799,  818 ; 
Green  v.  Durham.  1  Burr.  131.  Whether  the  mere  fact  that  a  single  un- 
authorized person  is,  by  a  mistaken  construction  of  the  charter,  allowed  to 
participate  in  the  transaction  of  a  meeting  of  the  council,  would,  in  this 
country,  he  held  necessarily  to  avoid  them,  is  a  question  which,  perhaps, 
remains  yet  to  be  settled.  It  has  been  held,  that  if  persons  who  are  not 
qualified  vote  at  a  town,  parish,  or  district  meeting,  without  objection  or 
challenge  at  the  time,  proof  of  that  fact  cannot  afterwards  be  made  with  a 
view  to  invalidate  the  proceedings.  Sutton  v.  Cole,  3  Pick.  232,  1825.  So, 
if  such  a  meeting  is  called  by  persons  acting  under  color  of  authority,  it  will 
be  legal  if  no  exception  to  their  authority  is  taken  at  the  time.     lb. 

1  Saxton  v.  Beach,  50  Mo.  488,  1872,  per  Wagner,  J. 

5  Decorah  v.  Bullis,  25  Iowa,  12,  1868;  "Welch  v.  Ste.  Genevieve,  1  Dillon 
C.  C.  130,  1871.     Infra,  sec.  214. 


330  MUNICIPAL    CORPORATIONS.  [Ch.  X. 

such  to  the  detriment  of  the  public,  the  boay  iigntfully  en 
titled  to  act  may  have  an  injunction  to  restrain  the  other 
from  interference  with  them.  To  the  argument,  that  in  re- 
lation to  public  corporations,  the  attorney  general  alone 
can  tile  such  a  bill,  the  court  replied  :  "  We  do  not  think 
so.  It  is  right  for  those  to  whom  public  functions  are  in- 
trusted to  see  that  they  are  not  usurped  by  others."1 

§  214.  In  this  country  the  doctrine  is  everywhere  de- 
clared, that  the  acts  of  de  facto  officers,  as  distinguished 
from  the  acts  of  mere  usurpers,  are  valid,  and  the  principle 
extends  not  only  to  municipal  officers  generally,  but  also  to 
those  composing  the  council,  or  legislative  or  governing 
body  of  a  municipal  corporation.2  But  in  order  that  there 
may  be  a  de  facto  officer,  there  must  be  a  de  jure  office  ; 
and  the  notion  that  there  can  be  a  de  facto  office  has  been 
characterized  as  a  political  solecism,  without  foundation  in 
reason  and  without  support  in  law  ;  and,  therefore,  a  person 

1  Kerr  v.  Trego,  47  Pa.  St.  292,  1864,  per  Lowrie,  C  J.  Mode  of  or- 
ganizing councils  to  which  new  members  are  to  be  admitted,  and  tests,  in 
case  of  conflicting  councils,  for  determining  which  is  the  legal  organization. 
lh.     Supra,  sec.  143,  note;  sec.  210;  sec  193,  note. 

5  Scoville  v.  Cleveland,  1  Ohio  St.  126,1853;  Decorah  v.  Bullis,  25  Iowa, 
12.  1S68;  Cochran  v.  McCleary,  22  Iowa,  75,  84;  Ex  parte  Strahl,  16  Iowa, 
360;  People  v.  Stevens,  5  Hill,  616;  State v.  Jacobs,  17  Ohio,  143;  People®. 
Bartlett,  6  Wend.  422;  Pritchard  v.  People.  1  Gilm.  till.)  529;  People  v. 
Runkle,  9  Johns.  147;  Trustees,  &c.  v.  Hill,  6  Cow.  23;  Williams  «.  School 
District,  21  Pick.  75  ;  see  Rex  v.  Mayor,  &c,  9  Mod.  Ill ;  De  Grave  v. 
Monmouth,  4  Car.  &  P.  411 ;  Laver  v.  McGlachlin,  28  Wis.  364;  post,  sec. 
716,  note ;  Cushing  v.  Frankfort,  57  Maine,  541.  In  a  case  in  the  House  of 
Lords,  decided  in  1851,  it  was  held,  that  an  act  done  by  a  definite  body, 
under  authority  of  parliament,  was  not  invalid  because  officers  de  facto 
joined  with  officers  de  jure  in  the  doing  of  it.  The  judges  having  unani- 
mously declared  this  to  be  their  opinion,  the  Lord  Chancellor  said:  "The 
opinion  of  the  judges  as  to  vestrymen  de  facto  and  de  jure  was  of  great  im- 
portance. When  it  was  considered  that  there  were  many  persons  who  weie 
charged  with  very  important  duties,  and  whose  title  to  perform  those  duties 
or  to  exercise  the  powers  necessary  for  their  performance,  the  public  could 
not  easilv  ascertain  at  the  time,  and  when  it  was  remembered  what  incon- 
veniences would  arise  if  the  validity  of  their  acts  depended  on  the  propriety 
of  the  election  of  the  persons  who  had  to  perform  them,  the  value  of  the 
clear  enunciation  of  the  principle  thus  made  by  the  judges  was  very  great, 
and  in  the  correctness  of  it  he  begged  to  declare  his  entire  concurrence. 
Scadding  v.  Lorant,  5  Eng.  Law  &  Eq.  16,  30,  per  Lord  Chancellor  Thuro. 


Ch.  X.]  CONSTITUTION     OF     COUNCILS.  33} 

cannot  claim  to  be  a  cle  facto  officer  of  a  municipal  corpora 
tion  when  the  corporation  or  people  have,  in  law,  no  power, 
in  any  event,  to  elect  or  appoint  such  an  officer.1 

§  215.  The  common  law  principle,  that  if  an  act  is  to  be 
done  by  an  indefinite  body  it  is  valid,  if  passed  by  a 
majority  of  those  present  at  a  legal  meeting,  no  matter  how 
small  a  portion  they  may  constitute  of  the  whole  number 
entitled  to  be  present,  has  been  deemed  applicable  to  the 
towns  of  New  England.  In  those  towns  the  corporate 
power  resides,  as  we  have  seen,  in  the  inhabitants,  or 
citizens  at  large,  and  these  form  the  constituent  body.  Lt 
the  meeting  has  been  duly  called  and  warned,  those  who 
assemble,  though  less  than  a  majority  of  the  whole,  have 
the  power  to  act  for  and  bind  the  whole,  unless  it  is  other- 
wise provided  bylaw.  Those  who  remain  away  are  justly 
and  conclusively  presumed  to  assent  to  what  may  lawfully 
be  done  by  those  who  attend.2 

§  216.     The  common    law    rules  as    to  quorums    and 

'  Decorah  v.  Bullis,  25  Iowa,  15,  18, 1868.  Hildreth's  Heirs  v.  Mdntire's 
Devisees,  1  J.  J.  Marsh.  (Ky.)  206;  People  «.  White,  24  Wend.  520,  540, 
541;  Carleton  v.  People,  10  Mich.  250;  Welch  v.  Ste.  Genevieve,  1  Dillon 
C.  C.  130,  1871;  supra,  sec.  212;  post,  chap.  XXI. ;  post.  sec.  716. 

*  Damon  v  Gvanby,  2  Pick.  345,  355,  1824;  Commonwealth  v.  Ipswich,  2 
Pick.  70;  Williams  v.  Lunenburg,  21  Pick.  75;  Church  Case,  5  Robert 
(N.  Y.)  649,  1867;  First  Parish  v.  Stearns,  21  Pick.  148, 1838;  State*.  Binder, 
38  Mo.  450,  1866. 

At  a  popular  election,  a  candidate  for  a  municipal  office  received  a 
plurality  of  all  the  votes  cast,  but  not  a  majority.  There  was  no  provision 
of  the  charter  nor  any  by-law  on  the  subject.  The  usage  in  the  corporation 
seemed  to  have  been  to  consider  the  person  having  the  highest  number  of 
votes,  although  not  a  majority  of  the  whole,  as  duly  elected.  The  statute 
in  relation  to  state  elections  expressly  provided  that  "plurality,  or  the 
highest  number  of  votes,  should  make  a  choice."  Under  these  circum- 
stances, the  majority  of  the  court  were  of  opinion  that  the  common  law 
rule,  that  a  majority  is  necessary  to  a  valid  election,  applied,  and  was  not 
controlled  by  the  terms  or  spirit  of  the  general  election  law  of  the  state. 
State  v.  Wilmington,  3Harring.  (Del.)  204,  1840.  Harrington,  J.,  dissented, 
holding  (and,  as  it  would  seem,  with  reason)  that  the  plurality  principle 
had  been  the  one  "invariably  adopted  as  most  in  consonance  with  our 
institutions  in  all  cases  where  the  law  of  election  is  silent  in  this  respect." 
II.  p.  305.  See  First  Parish  v.  Stearns,  21  Pick.  148.  As  to  municipal  elec- 
tions: Ante,  chap.  IX. 


332  MUNICIPAL     CORPORATIONS.  [Ch.  X. 

majorities,  established  with  reference  to  corporate  bodies, 
consisting  of  a  definite  number  of  corporators,  have  also,  in 
general,  been  applied  to  the  common  council,  or  select 
governing  body  of  our  municipal  corporations,  where  the 
matter  is  not  specially  regulated  by  the  charter  or  statute. 
Thus,  to  use  Mr.  Dane's  illustration,  if  the  body  consists  of 
twelve  common  councilmen,  seven  is  the  least  number  that 
can  constitute  a  valid  meeting,  though  four  of  the  seven 
may  act.1  Accordingly,  a  statute  in  reference  to  a  definite 
body,  declaring  that  a  "majority  of  those  present  at  any 
regular  meeting  shall  be  competent"  to  transact  business, 
leaves  the  number  which  may  form  a  quorum  to  be  de- 
termined by  the  common  law — that  is,  there  must  be  at 
least  a  majority  present,  and  such  a  provision,  it  was  con- 
sidered, did  not  authorize  a  minority  of  the  whole  body  to 
acV 

§  217.  So,  if  a  board  of  village  trustees  consists  of  five 
members,  and  all,  or  four,  are  present,  two  can  do  no  valid 
act,  even  though  the  others  are  disqualified,  by  interest, 
from  voting,  and  therefore  omit  or  decline  to  vote ;  their 
assenting  to  the  measure  voted  for  by  the  two  will  not  make 
it  valid.  If  three  only  were  present  they  would  constitute 
a  quorum,  then  the  votes  of  two,  being  a  majority  of  the 
quorum,  would  be  valid  ;8  certainly  so  where  the  three  are 
all  competent  to  act.* 

§  218.  In  another  case,  the  power  of  amotion  was  con- 
ferred upon  a  city  council  to  be  exercised  "by  a  vote  of 
tico-thirds  of  that  body,"  and  this  was  considered  to  give 
the  power  of  removal  to  two-thirds  of  a  legal  quorum. 
Two-thirds  of  the  whole  number  of  members  composing  the 
council  were  held  not  to  be  required.     The  point  was  ad- 

1  5  Dane  Abr.  150;  Ex  parte  Willcocks,  7  Cow.  402,  410,  1827,  note  d, 
and  criticism  on  the  rule  stated  in  1  Kyd  on  Corp.  418,  425;  2  Kent  Com. 
293;  Buell  v.  Buckingham,  16  Iowa,  284,  1864;  Regents,  &c.  v.  Williams,  9 
Gill  &  Johns.  (Md.)  365;  Mills  v.  Gleason,  11  Wis.  470. 

3  Ex  parte  Willcocks,  7  Cow.  402,  1827;  11.  463,  and  note;  lb.  526,  and 
note. 

!  Coles  v.  Williamsburg,  10  Wend.  658,  1833. 

4  Buell  v.  Buckingham,  16  Iowa,  284,  1864,  and  cases  cited 


Oh.  X.]  CONSTITUTION    OF     COUNCILS.  333 

mitted  to  be  close,  and  the  French  text  of  the  charter  wag 
relied  on  as  favoring  the  conclusion  reached.1 

§  219.  In  a  case  which  arose  in  California,  the  charter 
of  the  city  contained  a  provision  that  n'o  ordinance  should 
be  passed  by  the  common  council,  except  by  a  majority  of 
all  the  members  elected.  Eight  were  elected,  and  it  was 
decided,  under  the  above-mentioned  requirement  of  the 
charter,  that  an  ordinance  could  not  be  passed  by  a  vote  of 
four  against  three,  since  four  did  not  constitute  a  majority 
of  all  the  members  elected,  although  it  did  constitute  a 
legal  quorum.3 

§  220.  In  the  absence  of  special  provision,  the  major 
'part  of  those  present,  at  a  meeting  of  a  select  body,  must 
concur  in  order  to  do  any  valid  act.  Therefore,  when  it 
appeared  that  thirteen  ballots  were  cast  when  the  members 
present  were  only  entitled  to  give  twelve  votes,  of  which 
seven  were  for  one  person  and  six  for  another,  there  is  no 
election,  and  the  council,  though  it  has  declared  that  the 
person  receiving  seven  votes  was  duly  elected,  may  subse- 
quently rescind  its  action  and  proceed  to  a  new  election.' 
And  in  South  Carolina  the  general  rule  is  recognized,  and  a 
majority  of  the  board  of  managers  of  elections — having 
power,  by  statute,  to  determine  the  validity  of  contested 
elections — is  a  quorum,  and  a  majority  of  that  quorum  may 
act  and  decide.4 

§  221.     And,  as  a  general  rule,  it  may  be  stated,  that 

1  Warnock  v.  Lafayette,  4  La.  An.  419,  1849.  See,  on  this  point,  Lo- 
gansport  v.  Legg.  20  Ind.  315. 

a  San  Francisco  v.  Hazen,  5  Cal.  1G9,  1855.  See,  also,  Oakland  v.  Car- 
pentier,  13  Cal.  540.;  McCracken  v.  San  Francisco,  16  Cal.  591 ;  Piemental  v. 
San  Francisco,  21  Cal.  351. 

8  Labourdette  v.  Municipality,  2  La.  An.  527,  1847. 

4  State  v.  Deliesseline,  1  McCord  (South  Car.)  52,  1821,  where  the  sub- 
ject is  elaborately  considered  by  Nott,  J.;  S.  P.  State  v.  Huggins,  Harper 
(South  Car.)  Law,  94,  1824,  further  holding  that  where,  of  eighteen  mana 
gers  appointed  by  the  legislature,  two  refused  to  qualify,  one  was  disquali 
fied,  and  one  dead,  the  remaining  fourteen  (from  necessity  and  public  con- 
venience) properly  constituted  the  board,  and  might  act  by  a  majority  of 
the  fourteen.  The  decision  rests  upon  the  legislative  intent,  deduced  from 
various  provisions  of  the  act,  to  commit  the  matter  to  the  acting  managers. 


334  MUNICIPAL    CORPORATIONS.  [Ch.  X. 

not  only  where  the  corporate  power  resides  in  a  select  body, 
as  a  city  council,  but  where  it  has  been  delegated  to  a  com- 
mittee or  to  agents,  then,  in  the  absence  of  special  provis- 
ions otherwise,  a  minority  of  the  select  body,  or  of  the 
committee  or  agents,  are  rjowerless  to  bind  the  majority  or 
do  any  valid  act.  If  all  the  members  of  the  select  body  or 
committee,  or  if  all  of  the  agents  are  assembled,  or  if  all 
have  been  duly  notified,  and  the  minority  refuse  or  neglect 
to  meet  with  the  others,  a  majority  of  those  present  may 
act,  provided  those  present  constitute  a  majority  of  the 
whole  number.  In  other  words,  in  such  case,  a  major  part 
of  the  whole  is  necessary  to  constitute  a  quorum,  and  a 
majority  of  the  quorum  may  act.  If  the  major  part  with- 
draw so  as  to  leave  no  quorum,  the  power  of  the  minority 
to  act  is,  in  general,  considered  to  cease.1  But  where  the 
duties  are  purely  ministerial,  and  not  judicial,  or  are  of 
such  a  nature  as  to  exclude  the  idea  of  action  as  a  body  or 
board,  and  where  they  are  devolved  on  public  officers  or 
agents  rather  than  on  the  agents  of  corporations,  the  rule 
above  stated  (as  the  cases  below  referred  to  will  show)  has 
been  relaxed,  and,  in  some  instances,  deemed  wholly  in- 
applicable." 

1  Kingsbury  v.  School  District,  12  Met.  99,  1846 ;  Day  v.  Green,  4  Cush. 
438,  439,  184-9;  Fishery.  School  District,  4  Cush.  494,  1849;  Coffins.  Nan- 
tucket, 5  Cush.  269,  1850;  11  Cush.  433;  Damon  v.  Granby,  2  Pick.  345, 
355,  1824;  State  v.  Jersey  City,  3  Dutch.  (N.  J.)  493;  Charles  v.  Hoboken, 
lb.  203 ;  Dey  v.  Jersey  City,  19  N.  J.  Eq.  412,  1869 ;  Baltimore  v.  Poultney, 
25'Md.  18,  1866. 

a  With  respect  to  persons  or  officers  appointed  by  law  to  act  judicially  in 
a  public  matter,  it  is  generally  held,  there  being  no  provision  of  statute  to 
the  contrary,  that  where  all  meet,  and  act,  a  majority  may  decide  and  bind 
the  rest,  and  this  notwithstanding  the  express  dissent  of  the  minority,  or 
their  wrongful  withdrawal  before  the  act  is  consummated.  Ex  parte  Rogers, 
7  Cow.  526, 1827  (appraisal  of  damages  by  canal  appraisers),  and  see  lb.  note 
a,  and  the  cases  there  cited  and  reviewed;  lb.  764,  explanation.  See,  fur- 
ther, Ex  parte  Willcocks,  7  Cow.  402,  and  note ;  lb.  462,  463  ;  Young  v.  Buck- 
ingham, 5  Ohio,  485,  489,  1832;  Charles  v.  Hoboken,  3  Dutch.  (N.  J.)  203; 
Martin  v.  Lemon,  26  Conn.  192,  1857 ;  post,  sec.  757. 

The  statute  authorized  the  appointment  of  three  levee  inspectors,  and 
prescribed  their  duties,  which  involved  the  exercise  of  judgment.  Held, 
that  all  must  meet  and  act,  and  that  the  action  of  a  majority  in  the 
absence  of  the  third  was  void.     Ballard  v.  Davis,  31  Miss.  525,  1856. 

Where  a  majority  of  a  committee  is  authorized  to  act,  they  constitute  a 


Ch.  X.]  CONSTITUTION     OF     COUNCILS.  335 

§  222.     The  doctrine  of  the  English  courts  is,  that  .ill  of 
the  integral  parts  of  a  corporation  necessary  to  do  an  act 

party  capable  of  contracting,  and  another  member  of  a  committee,  not  act- 
ing as  such,  but  as  an  individual,  constitutes  another  party  capable  of  being 
contracted  with.  It  is  accordingly  held,  that  a  majority  of  such  a  committee 
may  contract  with  or  employ  one  of  their  oicn  ?iumber,  and  such  contract,  if 
fairly  made  and  without  fraud  or  corruption,  will  be  binding  upon  the  cor- 
poration. Junkins  v.  Union  School  District,  39  Maine,  220 ;  Buell  v.  BucTc- 
ingham,  16  Iowa,  284;  post,  sec.  371  note,  sec.  230;  Willard  v.  Newbury- 
port,  12  Pick.  227.  But  a  contract  made  by  less  than  a  majority  of  a  commit- 
tee of  the  corporation,  though  in  the  name  of  the  whole,  binds  neither  party. 
Post,  sec.  376.  But  it  will  be  binding  if  the  authority  was  joint  and  several, 
or  if  ratified.  Adams  v.  Hill,  16  Maine  (4  Shep.)  215, 1839  ;  Kupfera.  South 
Parish,  &c,  12  Mass.  185,  1815;  Allen  v.  Cooper,  22  Maine,  133,  1842.  In 
Damon  v.  Granby,  2  Pick.  345,  1842,  this  distinction  is  taken.  If  a  public 
corporation  appoints  a  committee  of  its  own  members,  a  majority  may  bind, 
for  such  is  the  usage  and  the  common  law  in  relation  to  corporations.  But 
if  the  authority  is  given  to  persons  not  members  of  the  body,  such  persons 
are  agents,  and  not  technically  a  committee,  and  all  must  concur,  unless  it 
appear  that  it  was  intended  that  a  majority  should  act.  See  authorities  cited 
by  Solicitor  General  Davis  in  same  case,  p.  350;  Viner's  Ab.  title  Authority, 
B.  pi.  7.  Further  as  to  binding  force  of  the  act  of  majority  of  a  committee 
or  board  of  selectmen,  see  Jones  v.  Andover,  9  Pick.  146;  Crommett  v.  Pear- 
son, 18  Maine  (6  Shep.)  344, 1841;  Junkins  v.  School  District,  39  Maine,  220, 
1855 ;  Inhabitants,  &c.  v.  Cole,  3  Pick.  232,  244 ;  Kingsbury  v.  School  Dis- 
trict, 12  Met.  99,  1846;  Keyesa.  Westford,  17  Pick.  273, 1835;  Green  v.  Miller, 
6  Johns.  39, 1810  ;  Grindley  v.  Barker,  1  Bos.  &  Pul.  236,  per  Eyre,  C.  J. ;  King 
v  Boston,  3  Term  R.  592;  Guthrie  v.  Armstrong,  5  Barn.  &  Aid.  628,  1822, 
where  it  was  held,  that  a  power  given  to  fifteen  jointly  and  severally  waa 
well  executed  by  four.  A  school  committee  appointed  according  to  and 
under  a  statute  are  public  officers  within  the  meaning  of  the  statute  which 
gives  a  majority  of  such  officers  authority  to  act  for  the  whole.  Keyser  v. 
School  District,  35  N.  H.  477,  1857.  Where  an  authority  is  given,  by  law, 
to  a  committee,  or  to  more  persons  than  one,  to  do  an  act  of  a  public  nature, 
one  alone,  unless  there  be  something  to  show  such  intention,  cannot  act 
independently  and  without  the  concurrence  of  the  others,  or  at  least  of  a 
majority.  If  the  act  is  ministerial,  a  majority  at  least  must  concur;  but 
unless  required,  or  such  is  the  practice,  they  need  not  act  as  a  board,  and 
be  convened  or  notified  to  be  convened  as  such.  But  if  the  act  is  judicial 
in  its  nature,  that  is,  requiring  the  exercise  of  judgment,  unless  special  pro- 
vision is  otherwise  made,  all  must  meet  or  have  notice  to  meet,  a  majority 
will  constitute  a  quorum,  and  a  majority  of  the  quorum  will  be  competent 
to  act.  Martin  v.  Lemon,  26  Conn.  192,  1857.  In  this  case  it  was  ruled,  that 
one  of  a  committee  of  three  to  remove  encroachments  on  highways  could 
act  alone.  Committees  of  public  corporations  have  sometimes  been  held  to 
be  governed,  with  respect  to  meeting  and  notice,  by  different  rules  from  a 
board  which  has  necessarily  to  be  assembled  or  convened  before  it  can  act. 


336  MUNICIPAL     CORPORATIONS.  [Ch.  X. 

must  not  only  meet,  but  remain  present  till  the  act  is  com- 
pleted ;  and  therefore  if  one  of  such  parts  deserts  or  with- 
draws, though  wrongfully,  andjfco  defeat  any  action,  before 
the  act  is  consummated,  the  act  is  not  valid  '    The  liability 

And  the  acts  of  a  majority  of  such  committees  have  been  considered  valid, 
though  some  member  of  the  committee  was  not  notified.  Gallup  v.  Tracy, 
(town  committee  to  stake  out  oyster  grounds),  25  Conn.  10,  1856.  But 
compare  Martin  v.  Lemon,  26  Conn.  192.  And  see  Damon  v.  Granby,  2 
Pick.  (Mass.)  345,  354;  Grindley  v.  Barker,  1  Bos.  &  Pul.  229;Keeler  v. 
Frost,  22  Barb.  400;  Perry  v.  Tyner,  lb.  137.  Where  a  public  authority  is  to 
be  exercised  by  two  officers — a  number  not  admitting  of  a  majority — reg- 
ularly, both  should  act;  yet,  to  prevent  a  failure  of  justice,  it  seems  one 
may,  in  certain  cases,  as  where  the  other  is  dead,  disqualified,  or  absent, 
act  alone.  But  certain  it  is,  that  where  one  only  acts,  the  consent  of  the  other 
will  be  j)resumed.  This  is  an  application  of  the  strong  presumption  which 
obtains  in  favor  of  the  performance  of  official  duty.  Downing  v.  Rugar,  21 
"Wend.  178,  1839,  and  authorities  cited.  This  case  also  holds,  that  the  pre- 
sumption of  consent  should  be  rebutted  only  by  the  testimony  of  the  other 
officer.  lb.  185.  "  It  is  a  general  principle,  that  where  a  board  of  officers 
(for  example,  overseers  of  the  poor)  is  constituted  to  perform  a  duty  pro- 
vided by  law,  the  act  of  the  majority  is  the  act  of  the  whole  body."  Per 
Bennett,  J.,  Wolcott  v.  Wolcott,  19  Vt.  37,  39,  1846.  See,  also,  Kingfl.  Bee- 
sten,  3  Term  R.  592 ;  Jones  v.  Andover,  9  Pick.  146. 

Under  the  statutes  of  Pensylvania,  all  powers  conferred  upon  county 
commissioners  may  be  legally  executed  by  two  without  the  concurrence  of 
the  third.  Commissioners  v.  Leckey,  6  Serg.  &  Rawle,  166 ;  Cooper  v. 
Reansbey,  8  Watts,  128;  Curtis  v.  Butler  Co.,  24  How.  (U.  S.)  435.  Jeffer- 
son Co.  v.  Slagle,  66  Pa.  St.  202,  where  it  is  held  that  a  contract  by  two 
county  commssioners  within  the  scope  of  their  authority  bound  the  county, 
although  not  made  at  their  office. 

Where  three  commissioners  are  appointed  to  contract  for  site  for  poor 
house,  two  of  them  cannot  make 'a  valid  purchase.  Pulaski  Co.  v.  Lincoln, 
4  Eng.  (Ark.)  320,  1849.  Action  of  less  than  a  majority  of  commissioners  of 
public  buildings,  appointed  by  act  of  legislature,  is  void.  Petrie  v.  Doe, 
30  Miss.  698,  1856.  A  statute  declaring  that  every  board  of  township  trus- 
tees, "and  the  members  thereof,"  shall  be  overseers  of  the  poor,  was  con- 
strued to  make  each  member  an  overseer,  with  power  to  act.  County  Com- 
missioners v.  Jones,  7  Ind.  3,  5,  1855.  When  majority  may  lawfully  execute 
powers  of  a  public  nature.  Commissioners  v.  Lecky,  6  Serg.  &  Rawle  (Pa.), 
170;  Baltimore  v.  Turnpike,  5  Binn.  484;  McCready  v.  Guardians,  9  Serg.  & 
Rawle,  99 ;  Commonwealth  v.  Commissioners,  9  Watts,  466,  471 ;  Cooper  v. 
Lampeter,  8  Watts,  128;  Caldwell  v.  Harrison,  11  Ala.  755;  Commissioners 
v.  Tarver,  21  lb.  661 ;  Crist  v.  Town  Trustees,  10  Ind.  452 ;  Schenck  v.  Peay, 
1  Dillon  C.  C.  R.  267. 

1  King  v.  Williams,  2  Maule  &  Sel.  141 ;  following  King  v.  Butler,  8  East, 
888;  questioning  King  v.  Norris,  1  Barnard.  K.  B.  385;  cited  and  reviewed 


Ch.  X.]  CONSTITUTION    OF     COUNCILS.  337 

of  this  rule  to  abuse,  since  it  enables  one  of  the  parts  of  a 
joint  meeting  or  assembly  to  defeat  any  action  whatever, 
has  led  the  courts  in  this  country  to  deny  its  applicability 
here,  or  to  apply  it  with  caution.1 

7  Cow.  526,  note ;  King  v.  Miller,  7  Terra  R.  278 ;  2  Kent's  Com.  292.  Mr. 
Willcock  vindicates  the  rule,  but  on  grounds  not  very  satisfactory.  Corp. 
53,  54.     Supra,  sec.  209. 

'  Ex  parte  Humphreys,  10  Wend.  612,  1834;  People  v.  Batchelor,  22  N. 
Y.  128,  146,  per  Denio,  J. ;  First  Parish  v.  Stearns,  21  Pick.  148,  1838 ;  Coles 
Co.  v.  Allison,  23  111.  437. 

The  common  law  rule,  that  to  the  due  constitution  of  a  corporate  assembly  a 
majority,  at  least,  of  each  integral  or  component  part  or  body,  must  neces- 
sarily be  present,  was  departed  from  by  the  Supreme  Court  of  New  Plamp- 
shire  in  the  case  of  Beck  v.  Hanscom.  By  the  charter,  the  city  government 
of  Portsmouth  was  vested  in  a  mayor,  "one  council  of  seven,  to  be  denom- 
inated the  board  of  aldermen,  and  one  council  of  twenty-one,  to  be  denom- 
inated the  common  council,  which  boards  should,  in  their  joint  capacity,  be 
denominated  the  city  council."  It  was  further  provided  by  the  charter, 
that  a  "majority  of  each  board  shall  constitute  a  quorum;"  that  the  two 
bodies  shall  sit  and  act  separately,  except  "when  the  two  are  required  to 
meet  in  convention;"  that  at  the  meeting  of  the  "city  council  in  conven- 
tion, if  it  shall  appear  that  a  majority  of  either  of  said  bodies  is  not  pres- 
ent," the  members  may  compel  the  attendance  of  the  absentees,  &c.  The 
b:>ard  of  aldermen  and  the  common  council  separately  voted  to  meet  in 
convention  on  the  12th  of  June,  for  the  choice  of  city  officers;  but  when 
the  time  arrived,  only  a  minority  (three  out  of  seven)  of  the  board  of  alder- 
men appeared.  The  common  council  and  these  aldermen,  twenty-three  in 
all,  being  a  majority  of  both  boards,  proceeded  to  elect  city  officers;  audit 
was  held,  1st,  that  the  election  was  valid ;  and  2d,  that  a  majority  of  the 
twenty-three  present  could  elect.  In  reference  to  this  decision  it  may  be 
observed,  that  the  court  take  no  notice  of  the  power  of  compelling  the  at- 
tendance of  the  absentees,  and  that  this  provision  seemed  to  contemplate 
the  presence  of  a  majority  of  each  of  the  constituent  bodies.  The  court 
cite  and  approve  Whitside  v.  People,  26  Wend.  634,  and  Ex  parte  Hum- 
phreys, 10  Wend.  612;  in  both  of  which,  however,  the  constituent  bodies, 
so  to  call  them,  duly  met  but  refused  to  act.  It  is  substantially  admitted 
by  the  court,  that  the  decision  they  make  is  not  in  conformity  with  the 
English  rule,  but  they  consider  it  to  be  the  one  "which  will  best  enable 
the  government  of  the  city  to  proceed  with  regularity;"  and  that  "after 
every  preliminary  step  has  been  properly  taken,  the  mere  neglect  of  one 
of  the  constituent  bodies  to  carry  its  previous  vote  into  effect  ought  not  to 
hinder  the  other  bodies  from  performing  the  duties  required  by  the  char- 
ter." Per  Gilchrist,  C.  J.,  in  Beck  v.  Hanscom,  supra,  9  Fost.  213,  226.  In 
Kimball  v.  Marshall,  44  N.  H.  465,  1863,  Bell  v.  Hanscom,  supra,  is  ap- 
proved, and  its  doctrine  applied  to  a  different  state  of  facts. 

Effect  of  refusal  of  one  of  two  distinct  bodies  to  go  into  a  joint  meeting, 
22 


3H8  MUNICIPAL    CORPORATIONS.  [Ch.  X. 

§  223.  The  usual  division  of  the  meeting  a  of  corporate 
bodies  is  into  (1)  stated  or  regular,  and  (2)  special  meetings  ; 
and  meetings  of  either  class  possess  an  incidental  power  of 
adjournment,  from  whence  we  have  another  class  known 
as  adjourned  meetings.  The  time  of  holding  regular  or 
stated  meetings  is  fixed  by  the  charter,  or  by  ordinance  or 
by-law,  passed  in  pursuance  thereof,'  and,  in  either  case, 
the  time  thus  appointed  is  presumed  to  be  known  to  the 
members  of  the  body ;  and  unless  the  charter  or  by-law 
otherwise  provides,  it  is  their  duty  to  attend  such  meetings 
without  further  or  special  notice.  Absent  members,  equally 
with  those  who  are  present,  are  bound  by  whatever  is  law- 
fully done  at  a  regular  or  stated  meeting,  or  any  regular 
and  valid  adjourned  meeting.1 

§  224.  If  the  meeting  be  a  special  one,  the  general  rule 
is,  unless  modified  by  the  charter  or  statute,  that  notice  is 
necessary,  and  must  be  personally  served,  if  practicable, 
upon  every  member  entitled  to  be  present,  so  that  each  one 
may  be  afforded  an  opportunity  to  participate  and  vote.1 

or,  after  being  assembled  in  joint  meeting,  to  participate  in  ''the  joint  bal- 
lot" by  which  officers  (by  statute)  are  to  be  removed  or  appointed,  see,  in 
Court  of  Errors,  Whitside  v.  The  People,  26  Wend.  634,  1841,  reversing 
decision  of  Supreme  Court  in  same  case,  23  Wend.  9.  See  act  of  congress 
of  July  25,  1866  (14  Statutes  at  Large,  243),  regulating  the  election  of 
United  States  senators  by  the  legislatures  of  the  several  states  in  joint  as- 
sembly, containing  provisions  (the  necessity  for  which  has  been  shown  by 
experience)  to  prevent  one  of  the  bodies  from  defeating  action. 

1  People  v.  Batchelor,  22  N.  T.  128,  1860;  Smith  v.  Law,  21  N.  T.  296; 
Hudson  Co.  v.  State  (presumption  of  regularity),  4  Zabr.  718;  Insurance  Co. 
v.  Sanders,  36  N.  H.  252.  See  and  compare,  State  v.  Jersey  City,  1  Dutch. 
(N.  J.)  309. 

2  People  v.  Batchelor,  22  N.  Y.  128,  134,  per  Selden,  J.;  II.  146,  per 
Denio,  J. ;  Ex  parte  Rogers,  7  Cow.  526,  and  cases  cited  in  valuable  note; 
Downing  v.  Rugar,  21  Wend.  178 ;  Burgess  «.  Pue,  2  Gill  (Md.)  254 ;  Stow  v. 
Wise,  7  Conn.  214 ;  Harding  v.  Vandewater,  40  Cal.  77 ;  Smith  v.  Darley,  2 
House  Lords  Cases,  789,  1849. 

At  a  stated  meeting  of  a  select  body  at  which  all  the  members  are  not 
present,  it  is  not  competent,  in  the  opinion  of  the  Court  of  Appeals  of  New 
York,  in  the  absence  of  a  statute  or  by-law  to  that  effect,  to  appoint  a 
future  new  or  special  meeting  to  determine  independent  matters  not  taken 
ap,  and  which  could  not  legally  have  been  taken  up,  at  the  stated  meeting, 
and  to  act  at  such  future  time,  unless  all  have  actual  notice.  If  any  one 
thus  entitled  to  notice  does  not  receive  it,  and  is  not  present,  the  action  is 


Ch.  X.]  CONSTITUTION     OF     COUNCILS.  339 

By  the  charter  of  a  city,  the  power  of  imposing  taxes  be- 
longed to  the  inhabitants  assembled  in  annual  town  meet- 
ing. It  was  provided,  that  if,  at  this  meeting,  no  tax  was 
voted,  or  insufficient  tax,  the  common  council  "  should  call 
a  meeting  of  the  inhabitants,  by  advertisement  or  other- 
wise," for  the  purpose  of  having  them  vote  a  tax.  The 
court  seemed  to  be  of  opinion,  that  the  common  council 
were  obliged  to  specify  the  objects  of  the  ctill  in  their 
notice,  it  being  a  special  meeting  ;  and  it  decided,  that  if  it 
did  specify  a  particular  purpose,  that  any  act  of  the  meet- 
ing, "  wholly  beside  the  special  purpose  of  the  meeting  as 
stated,"  was  void.1 

§  225.  A  regular  meeting,  unless  special  provision  is 
made  to  the  contrary,  may  adjourn  to  a  future  fixed  day  ; 
and  at  such  meeting  it  will  be  lawful  to  transact  any  busi- 
ness which  might  have  been  transacted  at  the  stated  meet- 
ing, of  which  it  is,  indeed,  but  the  continuation.  Unless 
such  be  the  special  requirement  of  the  charter  or  a  by-law 
the  adjourned  regular  meeting  would  not,  it  is  supposed,  be 
limited  to  completing  particular  items  of  business  which  had 
been  actually  entered  upon  and  left  unfinished  at  the  first 
meeting  ;  but  might,  if  the  adjournment  was  general,  do 
any  act  which  might  have  been  done  had  no  adjournment 
taken  place.3  Where  the  meeting,  if  a  regular  one,  can 
only  act  upon  a  specific  matter,  or,  if  a  special  one,  can 
only  act  upon  matters  of  which  notice  has  been  given  to 
the  members,  while  it  is  competent,  in  either  case,  to  ad- 
journ, the  adjourned  meeting  is,  in  both  cases,  limited, 
equally  with  the  first  meeting,  to  the  specified  matters.3 

void.     People  v.  Batchelor,  22  N.  Y.  128,  1860;  to  be  read  in  connection 
with  Smith  v.  Law,  21  N.  Y.  296. 

1  Bergen  v.  Clarkson,  1  Halst.  (N.  J.)  352,  1796.  See,  also,  Rex  v. 
Liverpool,  2  Burr.  735;  Rex  v.  Doncaster,  lb.  375;  King  v.  Mayor,  &c,  1 
Str.  385;  Machell  v.  Nevinson,  2  Ld.  Raym.  1355;  2  Bac.  Abr.  18. 

2  Smith  v.  Law,  21  N.  Y.  296;  Warner  v.  Mower,  11  Vt.  385;  People  v. 
Batchelor,  22  N.  Y.  128;  Rawlinson  on  Corp.  (5th  ed.)  136,  note ;  Scad- 
ding  v.  Lorant,  5  Eng.  Law  and  Equity,  16,  1851 ;  People  v.  Martin,  1  Seld. 
(N.  Y.)  22;  Street  Case,  1  La.  An.  412;  Hudson  Co.  v.  State,  4  Zabr.  718. 
Adjournment  by  minority  to  day  appointed  for  regular  meeting.  People  v. 
Rochester,  5  Lansing  (N.  Y.)  142,  1871. 

'  Hcadding  0.  Lorant,  5  Eng.  Law  and  Equity,  16;  S.  C,  17  Law  T.  225, 


340  MUNICIPAL     CORPORATION'S.  [Ch.  X. 


Mode  of  Proceeding  lolien  Convened. 

§  226.  After  a  meeting  of  the  council  is  duly  convened, 
the  mode  of  proceeding  is  regulated  by  the  charter  or  con- 
stituent act,  by  ordinances  passed  for  that  purpose,  and  by 
the  general  rules,  so  far  as  in  their  nature  applicable,  which 
govern  other  deliberative  and  legislative  bodies.  If  the 
council  consists  of  two  boards,  the  concurrence  of  both  is 
essential  to  valid  legislation,  and  this  concurrence  must  be 
by  simultaneously  existing  bodies.1  The  rule  of  legislative 
bodies  consisting  of  two  branches,  that  unfinished  business 
at  the  end  of  a  session  is  discontinued,  and  must  be  after- 
wards taken  up  anew,  if  at  all,  was  considered  applicable  to 
the  legislative  acts  of  the  common  council  of  Xew  York, 
composed  of  a  board  of  aldermen  and  a  board  of  assistant 
aldermen.11 

H.  of  L.  1851.  In  this  case,  the  statute  (a  local  act)  required  notice  to  be 
given  of  a  meeting  of  vestrymen  to  be  held  for  the  purpose  of  making  a 
rate  for  the  relief  of  the  poor.  Such  notice  was  given,  specifying  the  pur- 
pose of  the  meeting;  the  meeting  was  held  accordingly,  on  the  12th  of 
August,  when  it  was  resolved  that  a  rate  should  be  made;  but  as  the  details 
could  not  be  completed,  the  meeting  was  adjourned,  and  at  an  adjourned 
meeting  the  matter  of  the  rate  was  completed;  but  the  notice  for  the  ad- 
journed meeting  contained  no  mention  of  the  purpose  for  which  the  meet- 
ing assembled.  And  the  question  which  the  House  of  Lords  put  to  the 
judges,  in  reference  to  the  adjourned  meeting,  was:  "  Supposing  the  rate 
to  be  otherwise  valid,  was  it  invalid  by  reason  of  the  notice  not  stating 
the  purpose  for  which  the  [adjourned]  meeting  assembled  ?"  The  judges 
answered:  "We  are  unanimously  of  opinion,  that  the  rate  was  not  rendered 
invalid  by  reason  of  the  alleged  defect  in  the  notice  of  the  adjourned  meet- 
ing. It  was  sufficient  to  give  notice  [as  required  by  the  act]  on  the  church 
door  of  the  purpose  for  which  the  first  meeting  was  to  be  held,  and,  that 
notice  having  been  duly  given,  we  think  that  the  notice  so  given  extended 
to  all  the  adjourned  meetings,  such  adjourned  meetings  being  held  for  the 
purpose  of  completing  the  unfinished  business  of  the  first  meeting,  and 
being  in  continuation  of  that  meeting."  And  such  was  the  judgment  of 
the  House  of  Lords.     See,  also,  King  v.  Harris,  1  Barn.  &  Ad.  936. 

Presumption  as  to  regularity  of  adjournment  when  proceedings  of  the 
adjourned  meeting  come  before  the  court:  Hudson  Co.  v.  State,  4  Zabr. 
(N.  J.)  718;  Insurance  Co.  v.  Sortwell,  8  Allen,  217;  State  v.  Jersey  City,  1 
Dutch.  (N.  J.)  309. 

1  Wetmore  v.  Story,  22  Barb.  414,  1856. 

*  Wetmore  v.  Story,  22  Barb.  414,  1856.     A  subsequent  council  is  bound 


Ch>  x.]  MODE     OF     PROCEEDING.  341 

§  227.  The  council  may  ascertain  facts  through  the  me 
dium  of  a  committee,  and  the  members  of  the  council  may 
where  they  know  the  facts  of  their  personal  knowledge,  act 
without  further  inquiry.1  As  a  public  corporation  may  en- 
tirely revoke  the  powers  of  a  committee  it  has  appointed,  ^o 
it  may  control  the  execution  of  those  powers  by  increasing 
the  number  of  the  committee.  If  the  new  members,  either 
by  design  or  mistake,  are  excluded  from  acting,  the  pro- 
ceedings of  the  others  will  be  irregular.2 

§  228.  At  any  time  before  the  rights  of  third  persons 
have  attached,  a  council  or  other  corporate  body  may,  if 
consistent  with  its  charter  and  rules  of  action,  rescind  pre- 
vious votes  and  orders.3    Thus  a  vote  levying  a  tax,  so  long 

by  knowledge  duly  communicated  to  a  previous  council.  Bank  v.  Seton,  1 
Pet.  (TJ.  S.)  299,  1828.  In  Commonwealth  v.  Lancaster,  5  Watts,  152, 
Gibson,  C.  J.,  expressed  his  opinion  to  be,  that  notwithstanding  a  by-law  or 
rule  requires  certain  corporate  acts  to  be  in  a  given  form,  and  that  altera 
tions  of  such  by-law  or  rule  shall  only  be  made  by  a  vote  of  two-thirds  of 
the  members,  yet  that  a  majority  may  repeal  the  by-law  or  rule,  and  may, 
without  such  repeal,  do  valid  acts,  not  in  the  prescribed  form,  by  a  majority 
vote. 

1  Bissell  v.  Jeffersonville,  24  How.  (U.  S.)  287,  296,  per  Clifford,  J. ;  Com- 
monwealth  v.  Pittsburg,  14  Pa.  St.  177,  1850.  As  to  power  of  council  to  ap- 
point officers,  and  when  it  may  delegate  its  powers  to  a  committee:  lb.; 
Preble  v.  Portland,  45  Maine,  241 ;  ante,  sec.  60. 

1  Damon  v.  Granby,  2  Pick.  345,  1824.  In  this  case  it  was  further  held, 
where  the  agents  of  a  town  contracted  with  the  plaintiff  "to  erect  a  meet- 
ing-house on  a  place  to  be  designated  by  a  committee  of  the  town,"  that 
the  town  might  disagree  to  the  selection,  and  "designate  the  place  for 
themselves,  at  any  time  before  the  ground  was  prepared,"  on  indemnifying 
the  plaintiff  for  any  extra  labor  or  expense  which  their  fluctuating  proceed- 
ings may  have  occasioned.  A  notice  to  appear  before  a  committee  to  whom 
a  matter,  as  for  example,  the  laying  out  or  altering  of  a  street,  has  been 
duly  referred,  is  equivalent  to  a  notice  to  appear  before  the  city  council,  as, 
for  this  purpose,  the  committee  represent  the  council.  Preble  v.  Portland, 
45  Maine,  241,  1858. 

3  Bigelow  v.  Hillman,  37  Maine,  58;  Reiff  v.  Conner,  5  Eng.  (Ark.)  241; 
State  v.  Hoyt,  2  Oregon,  246;  ante,  sec.  41;  Road  Case,  17  Pa.  St.  71,  75; 
New  Orleans  v.  St.  Louis  Church,  11  La.  An.  244.  Reconsideration  at  sub- 
sequent meeting.  Locke  v.  Rochester,  5  Lansing  (N.  Y.)  11,  1871;  Sauk  v. 
Philadelphia,  1  Pa.  Leg.  Gaz.  Rep.  259."  The  right  of  reconsidering  lost 
measures  [at  the  same  meeting,  or  pursuant  to  its  rules]  inheres  in  every 
bodv  possessing  legislative    powers."     Per   WheljAey,   C.  J.,  Jersey  City  v. 


342  MUNICIPAL    CORPORATIONS.  [Ch.  X. 

as  it  lests  in  mere  resolution,  and  lias  not  been  acted  upon, 
may  be  reconsidered,  and,  if  rescinded,  the  collector  cannot 
legally  proceed  to  collect  the  tax.1 

§  220.  A  provision  of  a  city  charter,  that  the  ayes  and 
nays  shall  he  called  and  published  whenever  the  vote  of 
the  common  council  should  be  taken  on  any  proposed  im- 
provement involving  a  tax  or  assessment  upon  the  citizens, 
was  considered,  by  two  of  the  three  members  of  the  Supreme 
Court  of  New  York,  notwithstanding  the  use  of  the  word 
"  sliall"  to  be  directory  merely;  "the  essential  requisite 
being  the  determination  of  the  corporation,  and  not  the 
form  or  manner  of  expressing  that  determination."3  But 
an  opposite  view  has  elsewhere,  as  we  think  properly,  been 
taken  of  similar  provisions,  the  court  regarding  the  require- 
ment that  votes  shall,  in  such  cases,  be  entered  at  large  on 
the  minutes,  as  intended  to  accomplish  an  important 
public  purpose,  and  therefore  consider  the  requirement  as 

State,  1  Vrooin  (N.  J.)  521,  529,  1863;  Red  v.  Augusta,  25  Ga.  386.  "All 
deliberative  assemblies,  during  their  session,  have  a  right  to  do  and  undo, 
consider  and  reconsider,  as  often  as  they  think  proper,  and  it  is  the  result 
only  which  is  done."  Per  KirTcpatrick,  C.  J.,  in  State  v.  Foster,  2  Halst. 
(N.  J.)  101,  107,  1823.  See,  also,  State  v.  Jersey  City,  3  Dutch.  536. 
While  public  money  is  in  the  possession  of  the  proper  officer,  the  proper 
authorities  have  entire  control  over  it,  and  they  may,  so  far  as  the  officer 
holding  it  is  concerned,  rescind  a  prior  order  (not  yet  complied  •with)  to 
pay  money  to  an  individual.  Tucker  v.  Justices,  13  Ire.  (N.  Car.)  Law, 
434;  Dey  v.  Lee,  4  Jones  (N.  Car.),  Law,  238.  A  resolution  is  not  invalid 
because  passed  upon  a  reconsideration  of  a  negative  vote  moved  by  one 
who  voted  originally  with  the  minority  Locke  v.  Rochester,  5  Lansing 
(N.  Y.)  11,  1871.  But  in  Sauk  v.  Philadelphia,  8  Phila.  Rep.  (by  Wallace) 
117,  a  nisi  prius  decision  of  the  Supreme  Court,  it  was  held  that  the  city 
councils  having  once  voted  to  sustain  the  mayor's  veto  of  an  ordinance  passed 
by  them,  could  not  reconsider  this  vote,  nor  take  any  further  action  on  the 
measure.     6  Am.  Law  Rev.  720. 

1  Stoddard  v.  Gilman,  22  Vt.  568;  Pond  v.  Negus,  3  Mass.  230. 

*  Striker  v.  Kelly,  7  Hill  (N.  Y.)  9,  24,  29,  1844,  Bronson,  J.,  dissenting; 
S.  C.  in  Error,  3  Denio,  323;  see  McCormick  v.  Bay  City,  23  Mich.  457, 
1871 ;  Indianola  v.  Jones,  29  Iowa,  282;  In  re  Mount  Morris  Square,  2  Hill, 
20;  Elmendorf  v.  Mayor,  &c.  of  N.  Y.,  25  Wend.  693.  In  Morrison  v.  Law- 
rence, 98  Mass.  21©  the  grant  of  an  important  special  power  was  construed 
to  require,  as  a  condition  to  its  exercise,  the  taking  of  the  ayes  and  nays, 
and  a  record  of  thcvote.     The  decision  or  determination  of  a  question  by 


/h.  X.]  MODE     OF     PROCEEDING.  343 

mandatory  and  its  observance  essential  to  valid  corporate 
action.1 

§  230.  Acts  done  token  less  than  a  legal  quorum  is 
present,  or  which  were  not  concurred  in  by  the  requisite 
number,  are  void.2  This  is  a  fudamental  rule  in  the  law  of 
corporations  ;  but  whether,  in  favor  of  the  holder  of 
negotiable  securities  issued,  or  purporting  to  be  issued, 
under  authority  conferred  by  the  legislature,  the  corpora- 
tion might  not,  in  some  cases,  be  estopped  to  show  that  a 
quorum  was  not  present  or  that  the  requisite  number  did 
not  concur  in  the  act,  is  a  question  which  remains,  perhaps, 
to  be  settled.3  It  is  clear  that  members  of  a  council  cannot 
properly  act  in  questions  upon  which  their  own  pecuniary 
interest  is  directly  and  specially  involved.  But  it  has  been 
held  in  Michigan  that  proceedings  on  the  part  of  a  mu- 
nicipal corporation  ordering  a  paving  improvement  are  not 
rendered  invalid  on  the  ground  that  two  of  the  aldermen 
who  formed  part  of  the  quorum  of  the  common  council, 
which  ordered  the  improvement,  and  without  whose  presence 
there  would  have  been  no  quorum,  were  petitioners  for  the 
improvement  and  owners  of  property  liable  to  assessment 

a  town  meeting  or  common  council  should  be,  and  probably  must  be,  by  a 
formal  vote  or  resolution.  People  v.  Adams,  9  Wend.  333,  1832;  Denning  t>. 
Roome,  6  Wend.  651,  1831. 

1  Steckert  v.  East  Saginaw,  22  Mich.  104,  1870,  where  the  purpose  of  the 
requirement  is  well  expounded  ;  Spangler  v.  Jacoby,  14  111.  297 ;  Supervisors, 
&c.  v.  People,  25  111.  297;  Morrison  v.  Lawrence,  supra;  McCormick  v. 
Bay  City,  23  Mich.  457,  1871 ;  Delphi  v.  Evans,  36  Ind.  90,  1871.  Accord- 
ingly a  provision  of  statute  that  no  ordinance  for  the  improvement  of  a 
street  should  be  adopted,  except  upon  the  report  and  recommendation  of 
the  city  board  of  improvements,  and  requiring  that  such  report  be  recorded 
in  its  proceedings,  is  mandatory,  and  the  report  and  recommendation  were 
held  jurisdictional  and  not  provable  by  parol  evidence.  Reynolds  v 
Schweinefus,  1  Sup.  Court  Cin.  (O.)  Rep.  113. 

a  Logansport  v.  Legg,  20  Ind.  315,  1863;  Ferguson  v.  Chittenden  Co.,  1 
Eng.  (Ark.)  479.  1846;  Price  v.  Railroad  Company,  13  Ind.  58,  1859;  Mc- 
Cracken  v.  San  Francisco,  16  Cal.  591;  Piemental  v.  San  Francisco,  21  Cal. 
351 ;  State  v.  Wilkesville,  20  Ohio  St.  288.  Number  present  and  acting, 
how  proved.  13  Ind.  58,  supra.  Presence  of  quorum,  when  presumed! 
Insurance  Company  v.  Sortwell,  8  Allen,  217. 

1  See  ante,  sec.  55 ;  post,  chapter  on  Contracts.  Construction  of  charter 
provision  requiring  unanimity:  post,  sec.  247. 


344  MUNICIPAL    CORPORATIONS.  [Ch.  X, 

therefor.  It  might  be  otherwise,  the  court  concede,  if  the 
roramon  council  acted  as  commissioners  of  apportionment 
in  making  the  assessment  upon  the  property  that  was_  to 
bear  the  burden,  or  on  the  confirmation  of  a  report  in  which 
the  interest  of  these  aldermen  was  directly  involved.1 

1  Steckert  v.  East  Saginaw,  22  Mich.  104,  1870,  where  the  reasons  for 
the  distinctions  taken  are  clearly  stated  by  Cooley,  J. 

Bight  of  corporation  to  contract  with  its  officers  or  councibnen.  Ante,  sec. 
221,  note  3,  and  cases  cited.     Post,  sec.  371,  note. 


ch.  XI.]  CORPORATE    RECORDS.  345 


CHAPTEK  XI. 

Corporate  Eecords  and  Documents. 

§  231.  Corporations  have  the  incidental  power,  if  the 
regular  clerk  is  temporarily  absent,  to  appoint  a  private 
person  a  cleric  pro  tern,  for  the  purpose  of  making  the 
entries  of  what  is  transacted  at  the  corporate  meeting.  His 
entries,  made  by  the  direction  of  the  corporate  authorities, 
or  entries' made  by  the  regular  clerk  from  memoranda 
furnished  by  the  clerk  pro  tern.,  are  competent  evidence  of 
the  proceedings  of  the  meeting.1 

§  232.  The  clerk  or  officer  of  a  New  England  town'  who 
lias  made  an  erroneous  record,  may,  while  in  office  (but 
not  afterwards),  or  after  a  re-election  to  the  same  office, 
amend  the  same  according  to  the  truth,  being  liable,  like  a 
sheriff  who  amends  his  return,  for  any  abuse  of  the  right, 
as  where  he  makes  a  fraudulent  or  untruthful  amendment, 
the  town  is  not  concluded  or  bound  by  an  erroneous  record, 
whether  made  by  design  or  accident,  unless  when  it  would, 
on  general  principles,  be  estopped.3 

1  Hutchinson  v.  Pratt,  11  Vt.  402,  1839.  See  also  Rex  v.  Mothersell,  1 
Stra.  93,  also  referred  to  infra.  Sufficiency  of  memoranda :  Louisville  v. 
McKegney,  8  Bush  (Ky.)  651,  1870.  Faiure  of  clerk  to  take  oath  of  office 
does  not  invalidate  his  record.  Stebbins  v.  Merrit,  10  Cush.  27.  Ante, 
sec.  153.  Signature  of  chairman  to  minutes  affixed  at  a  day  subsequent  to 
the  meeting,  held  sufficient,  under  a  statute  requiring  the  minutes  of  cor- 
porate meetings  to  be  signed  by  the  chairman.  Miles  v.  Bough,  3  Gale  & 
D.  119;  Inglis  v.  Railway  Company,  16  Eng.  Law  and  Eq.  55.  See,  also, 
chapters  relating  to  Corporate  Meetings  and  Corporate  Officers.  Post,  sec. 
265. 

2  Ante,  sees.  12,  13,  as  to  New  England  towns. 

3  Cass  v.  Bellows,  11  Fost  (N.  H.)  501,  1855;  Harris  v.  School  District,  8 
F.ist.  58,  66,  1853;  Gibson  v.  Bailey,  9  N.  H.  168;  Whittier  v.  Varney,  ION. 
H  291;  Wells®.  Battelle,  11  Mass.  477;  Low  v.  Pettingill,  12  N.  H.  340; 
Pierce  v.  Richardson,  37  N.  H.  306;  Scammon  v.  Scammon,  8  Fost.  429; 
President,  &c.  v.  O'Malley,  18  111.  407,  1857;  Mott  v.  Reynolds,  27  Vt.  (J 
Wins.)  206,  1855  ;  Boston  Turnpike  Co.  v. Pomfret,  20  Conn.  590,  1850;  con? 


346  MUNICIPAL     CORPORATIONS.  [Ch.  XI 

§  233.     In  a  case  in  Vernont,   the   clerk  of  the  town, 
'pending  a  trial,  amended  the  record  by  adding  his  signa- 
ture as  clerk  to  the  record  of  the  warning  for  the   meet- 
pare  Covington  v.  Ludlow,  1  Met.  (Ky.)  295,  below  cited.     The  necessity 
and  reasonableness  of  the  doctrine,  stated  in  the  text,  are  thus  expounded 
by  Parker,  C.  J.,  in  Wells  v.  Battelle,  11  Mass.  477,  481,  1814:  "We  have  had 
frequent  occasion  to  perceive  the  great  irregularity  which  prevails  in  the 
records  of  our  towns  and  other  municipal  corporations;  and  the  courts  have 
alwavs  been  desirous  to  uphold  these  proceedings,  where  no  fraud  or  willful 
error   was   discoverable.     Too  much  strictness  on  subjects  of  this  nature 
would  throw  the  whole  body  politic  into  confusion  [Kellar  v.  Savage,  17 
Maine  444].     For  it  cannot  be  expected  that,  in  all  corporations,  persons 
will  be  every  year  selected,  who  are  capable  of  performing  their  duty  with 
the  exactness  which  would    be  useful  or  convenient."     "The  first  entry 
made  by  the  clerk  here  [that  an  officer  was  sworn  into  office]  was  certainly 
defective,  but  the  defect  is  properly  cured  by  the  subsequent  entry  of  the 
existing  clerk,  he  being  the  same  person  that  officiated  at  the  time  of  the 
first  entry.     He  will  be  sufficiently  watched  by  interested  parties,  to  render 
a  deviation  from  truth  neither  safe  nor  easy."     The  doctrine  of  the  case  in 
11  Mass.  477,  was  followed  and  applied  in  Chamberlain  v.  Dover,  13  Maine, 
466.    1836,  where  it   was  further    held,  that  the   municipal  body  was  not 
bound  by  an  erroneous  record  of  a  clerk,  even  though  the  plaintiffs,  con- 
fiding  in  its  correctness,  had  made  a  building  contract  with  the  "  contract- 
ing and  building  committee  "  named  in  the  record.     The  meeting,  in  this 
case,  which  attempted  to  confer  this  power  upon  the  committee,  was  not  a 
legal  one,  because  not  held  at  the  time  and  place  appointed;  and  it  was 
considered  by  the  court  that  the  plaintiffs'  remedy  was  against  the  commit- 
tee and  not  against  the  town,  if  the  former  acted  without  authority.     See, 
further,  as  to  correcting  and  amending  records,  Williams  v.  School  District, 
21  Pick.  75,  holding  that  where  two  different,  but  not  contradictory,  records 
were  made  up   by  the  clerk  from  memoranda  taken  at  the  meeting  that 
both  were  originals  and  competent  testimony. 

Cleric  cannot  amend,  records  after  he  is  out  of  office.  School  District  v. 
Atherton,  12  Met.  105,  1846;  Hartwell  v.  Littleton,  13  Pick.  229,  232,  1832; 
(  antra,  to  the  effect  that  he  may  amend,  though  out  of  office  at  the  time, 
tee  Gibson  v.  Bailey,  9  N.  H.  168,  1838.  But  may,  while  he  is  in  office. 
Eishop  v.  Cone,  3  N.  H.  513,  1821 ;  Hoag  v.  Durfey,  1  Aiken  (Vt.)  286, 
1826;  Chamberlain®.  Dover,  13  Maine,  466,  1836.  That  successor  cannot 
make  the  amendment.  State  v.  Williams,  25  Maine,  561,  555 ;  29  lb.  523 
Taylor  v.  Henry,  2  Pick.  397.  But  the  corporation  might,  in  proper  cases, 
authorize  the  successor  to  supply  the  omitted,  or  correct  the  erroneous,  en- 
try.    Hutchinson  v.  Pratt,  11  Vt.  402,  419. 

In  New  Hampshire  it  is  the  practice  to  allow  these  amendments  only  upon 
the  order  of  the  Supreme  Court  or  Court  of  Common  Pleas  by  the  officer  by 
v>  horn  they  were  made,  even  after  he  has  ceased  to  hold  the  office.  A  clear 
case  must  be  made  out.  The  court  do  not  permit  any  erasures  or  interim 
cations  of  the  original  record,  but  require  the  amendment   to   be  written 


Ch.  XL]  CORPORATE  RECORDS.  347 

ing  in  question.  His  right  to  do  so  though  he  had  mean 
time  been  out  of  office,  but  was  again  restored,  was  sanc- 
tioned by  the  Supreme  Court,  RedfieZd,  C.  J.,  remark- 
ing: "We  think,  in  general,  it  must  be  regarded  as 
the  right  of  the  clerk  of  a  town  or  other  municipal  cor 
poration,  while  having  the  custody  of  the  records,  to  make 
any  record  according  to  the  facts.  His  having  been  out 
of  office,  and  restored  again,  could  not  deprive  him  of 
that  right.  But  even  an  officer  could  not  alter  or  amend 
a  record  upon  the  testimony  of  third  persons  ordinarily. 
and  ought  not  to  do  it  upon  his  own  recollection  unless 
in  very  obvious  cases  of  omission  or  error,  of  which 
the  present  might  fairly  be  regarded  as  one,  probably. 
Such  amendments  should  ordinarily  be  made  by  the  original 
documents  or  minutes."1  The  right  of  the  cleric  ex  parte  to 
amend  the  records  of  the  proceedings  of  town  corporations 
was  very  thoroughly  considered  in  a  case  in  Connecticut.* 
The  statute  of  that  state  requires  town  clerks  to  keep  the 
record  books  of  their  respective  towns,  and  to  enter  truly 
all  the  votes  and  proceedings  of  the  town.  The  town  clerk 
made  an  entry  showing  that  at  a  town  meeting  held  in  1843, 
the  town  assumed  to  the  plaintiff  a  liability  to  commence 
January  1,  1844.  If  the  time  thus  stated  was  the  true  time, 
the  plaintiff  had  a  cause  of  action  against  the  town.  In 
1849,  the  clerk,  not  upon  his  own  personal  knowledge,  nor 
upon  any  written  memorandum,  but  on  the  information  of 
others  (with  the  correctness  of  which,  however,  he  was  per- 
fectly satislied),  amended  the  record  so  as  to  show  that  the 
liability  of  the  town  was  not,  by  the  vote,  to  commence  un- 
til April  1,  1844.  If  this  was  the  true  time,  the  plaintiff  had 
no  cause  of  action.  The  majority  of  the  court  (three  judges 
against  two)  held  that  the  clerk,  still  continuing  in  office, 

upon  a  separate  piece  of  paper,  signed  by  the  proper  officers,  and  with  it  a 
copy  of  the  order  allowing  the  amendment;  and  this  paper  is  annexed  to 
the  original  record.     Pierce  v.  Richardson,  37  N.  H.  306,  311,  per  Bell,  J. 

1  Mott  v.  Reynolds,  27  Vt.  (1  Wins.)  206,  208,  1855.  Amendments  in 
open  court  of  town  record  by  clerk  of  the  town  pending  trial,  to  which  the 
clerk  is  a  party,  and  to  meet  a  particular  decision  of  the  court,  disregarded. 
Hadley  v.  Chamberlain,  11  Vt.  618,  1839.  Commented  on  and  distinguished. 
Mott  v.  Reynolds,  27  Vt.  (1  Wins.)  206,  1855. 

'  Boston  Turnpike  Co.  v.  Pomfret,  20  Conn.  590,  1850. 


348  MUNICIPAL     CORPORATIONS.  [Ch.  XI. 

was  competent  to  amend  the  record — that  this  power  is  de- 
rived solely  from  his  official  character,  and  does  not  depend 
on  the  permission  of  the  court  in  which  the  record  is 
offered  as  an  instrument  of  evidence,  nor  on  inquiry  into 
the  truth  of  it  as  originally  made,  or  as  amended,  and  that 
such  a  record  is,  in  such  an  action,  conclusive  evidence  of 
its  own  truth.  The  dissenting  judges,  without  denying  the 
power  of  amendment  in  all  cases,  were  of  opinion  that  in 
view  of  the  lapse  of  time,  the  absence  of  written  memoranda, 
or  personal  recollection  by  the  clerk,  the  clerk  had  no  au- 
thority to  make  the  amendment,  and  that  the  correct  course 
would  have  been  to  have  made  application  to  the  proper 
court  by  legal  process,  e.  g.,  mandamus,  to  correct  the  mis- 
take in  the  record,  if  one  existed,  and  thus  give  the  opposite 
interested  party  an  opportunity  to  show  that  the  record  was 
already  right.  It  would  seem,  under  the  special  circum- 
stances that  the  dissenting  view  was  the  better  one. 

§  234.  Where  the  clerk  makes  up  the  record  of  the  pro- 
ceedings of  the  council,  and  it  is  read  and  approved  at  the 
same  or  at  a  subsequent  meeting,  the  author  doubts  his  au- 
thority, on  his  own  motion,  to  amend  it  afterwards  without 
the  direction  of  the  council.  The  council,  unless  private 
rights  have  attached,  may,  doubtless,  order  the  record  of  its 
own  proceedings,  even  after  it  has  once  been  approvad,  to 
be  corrected  according  to  the  facts.  The  Court  of  Appeals 
of  Kentucky,  without  determining  the  extent  of  the  power 
of  the  same  council  at  a  subsequent  meeting,  to  correct 
errors  and  omissions  in  the  journal  entry  of  proceedings  at 
a  previous  meeting,  decided  that  this  could  not  be  done  by 
an  entirely  new  board  in  respect  to  the  official  action  of 
their  predecessors  ;  and  it  was  accordingly  held,  that  where 
the  records,  as  kept,  showed  only  that  in  August,  1854,  an 
ordinance  was  reported,  a  new  council  could  not,  in  1856, 
add  to  the  records  words  showing  that  the  ordinance  had 
passed,  nor  could  the  fact  of  its  passage  be  shown  by 
extrinsic  evidence.1 

1  Covington  v.  Ludlow,  1  Met.  (Ky.)  295,  1858;  see,  also,  Lexington  e. 
Headiey,  5  Bush  (Ky.)  508,  1869;  Graham  v.  Carondelet,  33  Mo.  262;  State 
b.  Jersey  City.  1  Vroom  (N.  J.)  93,  148,  and  chapters  on  Corporate  Meetings 
^nd  ordinances,  post,  sec.  247 ;  ante,  sec.  228. 


Ch.  XL]  CORPORATE    RECORDS.  349 

§  235.  Parol  evidence  may,  if  necessary,  be  admitted  to 
apply  a  resolution  or  recorded  vote  of  a  town  to  its  proper 
subject  matter,1  but  not,  in  general,  to  explain,  enlarge,  or 
contradict  its  terms  or  meaning,  in  respect  to  matters  (as, 
for  example,  laying  out  a  highway  or  street)  regularly 
within  the  jurisdiction  of  the  town  or  its  officers,  and  where 
the  entry  of  record  is  made  in  pursuance  of  law.a  Where 
the  record  of  a  meeting  states  that  "the  inhabitants  met 
and  adjourned  the  meeting,"  parol  evidence  may  be  ad- 
mitted to  show  when  and  where  the  meeting  was  held,  how 
many  were  present,  and  how  many  afterwards  came,  and, 
rinding  no  meeting,  went  home.8 

§  236.     Parol  evidence  in  a  collateral  action  cannot  be 

1  Baker  v.  Windham,  13  Maine  (1  Shep.)  74, 1836.  In  this  case  the  town 
of  Windham  entered  upon  its  records  the  following:  "  Voted  to  indemnify 
Benj.  Baker,  in  his  costs  in  the  action  against  A.  Small,  which  have  or  may 
arise  in  the  same  on  account  of  Gray  line."  In  an  action  by  Baker  against 
the  town  to  recover  costs  of  a  suit  which  he  had  brought  against  Small, 
parol  evidence  was  adjudged  to  have  been  rightly  admitted  to  show  that 
Baker  brought  the  action  in  his  name  against  Small,  on  account  of  the  Gray 
line,  at  the  request  of  the  selectmen  of  Windham,  for  the  purpose  of 
settling  a  disputed  line  between  that  and  the  adjoining  town,  with  the  ex- 
press agreement  that  the  town  should  pay  all  costs,  and  to  show  that  these 
facts  were  before  the  town  when  the  vote  was  passed,  and  also  to  show  that 
the  suit  so  instituted  was  conducted  under  the  advice  and  direction  of  the 
authorities  of  the  town. 

2  Manning  v.  Fifth  Parish,  &c.  6  Pick.  16 ;  Crommett  v.  Pearson,  18 
Maine,  344 ;  Covington  v.  Ludlow,  1  Met.  (Ky.)  295 ;  Cabot  v.  Britt,  36  Vt. 
349;  Lexington  v.  Headley,  5  Bush  (Ky.)  508,  1869.  Post,  sec.  247;  ante, 
sec.  229. 

3  Chamberlain  v.  Dover,  13  Maine,  466,  1836.  But  parol  evidence  of  an 
adjournment  to  another  day  cannot  be  given  so  as  to  validate  acts  done  on 
the  day  adjourned  to.  Taylor  v.  Henry,  2  Pick.  397.  Where  a  statute 
requiring  a  record  to  be  made  of  the  persons  sworn  into  office  is  directory, 
if  the  record  is  not  made,  the  fact  may  be  shown  by  parol  or  other  com- 
petent evidence.  Kellar  v.  Savage,  17  Maine  (5  Shep.)  444,  1840.  In  the 
M.  E.  Corporation  v.  Herrick,  25  Maine,  354,  it  was  held,  that  to  establish 
a  resulting  trust  in  the  corporation  [with  respect  to  lands],  it  could  not 
prove  the  authority  of  the  committees  to  act  for  it  by  parol  evidence;  the 
authority  should  appear,  and  could  only  be  shown  by  its  records.  Further 
as  to  what  facts  may  be  shown  by  parol :  Bath  v.  County  Commissioners, 
36  Maine,  74;  35  lb.  373;  Smith  v.  County  Commissioner*  42  Maine,  395. 
Ante,  sec.  206,  and  note.     Post,  sec.  247. 


350 


MUNICIPAL     CORPORATIONS.  [Ch.  XL 


received  to  contradict  the  records  of  a  public  corporation, 
required  by  law  to  be  kept  in  writing,  or  to  show  a  mistake 
in  the  matters  as  therein  recorded.  Thus,  if  the  records  of 
a  school  district  show  that  the  district  voted  to  authorize 
their  clerk  to  call  and  warn  "  their  annual  meetings,"  parol 
evidence  in  an  action  by  the  district  is  not  admissible  to 
prove  that  the  real  vote  of  the  district  was  to  authorize  the 
clerk  to  call  and  warn  all  district  meetings.1  So,  where  the 
record  of  a  town  stated  the  warning  to  have  been  on  the 
17th,  and  the  meeting  to  have  been  held  on  the  19th  of 
January,  parol  evidence  cannot  be  admitted  to  show  that, 
by  mistake,  the  clerk  inserted  the  "19th"  instead  of  the 
"29th."  The  remedy  is,  to  have  him  correct  the  record, 
if  in  office,  according  to  the  truth.2 

§  237.  But  a  distinction  has  sometimes  been  drawn  be- 
tween evidence  to  contradict  facts  stated  on  the  record  and 
evidence  to  show  facts  omitted  to  be  stated  upon  the 
record.  Parol  evidence  of  the  latter  kind  is  receivable  un- 
less the  law  expressly  and  imperatively  requires  all  matters 
to  appear  of  record,  and  makes  the  record  the  only  evi- 
dence.3   Thus,  in  a  well-considered  case  in  the   Supreme 

1  School  District  v.  Atherton,  12  Met.  105,  1846;  Morrison  v.  Laurence, 
98  Mass.  219;  Mayhew  v.  Gayhead,  13  Allen,  129. 

4  Durfey  v.  Hoag,  1  Aiken  (Vt.)  286,  1826.  So  in  Connecticut,  if  a  town 
corporation  makes  an  erroneous  record  of  its  proceedings,  this  cannot  be 
contradicted  in  a  collateral  action.  In  such  an  action  the  record  is  conclu- 
sive. If  false,  and  the  corporation  -will  not  correct  the  record,  a  party  in- 
terested may,  by  mandamus,  compel  it  to  make  the  correction.  Boston 
Turnpike  Co.  v.  Pomfret,  20  Conn.  500,  1850.  Upon  this  point,  all  the 
judges,  though  different  on  other  points,  seemed  to  agree.  Post,  chap. 
XIX.     Supra,  sec.  233. 

Purchasers  of  such  paper  [bonds  issued  by  cities  for  stock  in  railroads] 
look  at  the  form  of  the  paper,  the  law  which  authorized  it  to  be  issued,  and 
the  recorded  proceedings  on  which  it  is  based.  Therefore,  as  against  pur- 
chasers, the  record  cannot  be  contradicted  by  parol  evidence.  Per  Clifford, 
J.,  in  Bissell  v.  Jeffersonville  (action  on  municipal  bonds),  24  How.  (U.  S.) 
287  298.  See  chapter  on  Contracts,  post,  as  to  the  rights  of  holders  of  such 
securities. 

8  Moor  v.  Neufield,  4  Greenl.  44,  1826.  "  The  only  legal  mode  of  proving 
facts  on  record  is  by  the  record  itself,  or  by  an  attested  copy  of  it."  lb.  per 
Mellen,  C.  J. ;  School  District  v.  Atherton,  12  Met.  105,  113,  1847,  per  Deweyr 
J. ;  Langsdale  v.  Bonton,  12  Ind.  467;  Indianapolis  v.  Imberry,  17  Ind.  175» 


Ch.  XI.]  CORPORATE     RECORDS.  351 

Court  of  the  United  States,'  it  was  held,  that  the  acts  of  a 
corporation  might  be  proved  otherwise  than  by  its  records 
or  some  written  document,  even  although  it  was  its  duty 

170;  Delphi  v.  Evans  (referring  to  previous  cases),  36  Ind.  90,  1871 ;  Bige- 
low  >\  Perth  Amboy,  1  Dutch.  (N.  J.)  297,  1855;  Gearhart  v.  Dixon,  1  Pa. 
St.  224,  1845.  Where  the  law  or  charter  requires  the  clerk  to  keep  a  journal 
of  all  of  the  acts  and  proceedings  of  the  city  council,  that,  or  a  copv,  is  the 
proper  evidence  of  the  official  doings  of  the  body.  City  of  Lowell  v. 
Wheelock,  11  Cush.  391,  1853;  Harris  v.  Whitcomb,  4  Gray,  433;  Morrison 
v.  Lawrence,  98  Mass.  219;  Louisville  v.  McKegney,  7  Bush  (Ky)  651,  1870. 
Post,  sec.  247. 

1  Bank,  &c.  v.  Dandridge,  12  Wheat.  64.  Delivering  the  opinion  of  the 
court,  Mr.  Justice  Story,  arguendo,  makes  these  important  observations: 
"  "Would  the  omission  of  the  corporation  to  record  its  own  doings  have 
prejudiced  the  rights  of  the  party  relying  upon  the  good  faith  of  an  actual 
vote  of  the  corporation  ?  If  such  omission  would  not  be  fatal  to  the  plain- 
tiff in  suits  against  the  corporation  (as,  in  our  opinion,  it  would  not  be),  it 
establishes  the  fact,  that  acts  of  the  corporation,  not'  recorded,  may  be 
established  by  parol  proofs,  and,  of  course,  by  presumptive  proofs.  In 
reason  and  justice,  there  does  not  seem  any  solid  ground  why  a  corpora- 
tion may  not,  in  case  of  the  omission  of  its  officers  to  preserve  a  written 
record,  give  such  proofs  to  support  its  rights  as  would  be  admissible  in 
suits  against  it  to  support  adverse  rights.  The  true  question  in  such  case 
would  seem  to  be,  not  which  party  was  plaintiff  or  defendant,  but  whether 
the  evidence  was  the  best  the  nature  of  the  case  admitted  of,  and  left 
nothing  behind  in  the  possession  or  control  of  the  party  higher  than  sec- 
ondary evidence."  "We  do  not  admit,  as  a  general  proposition,  that  the 
acts  of  a  corporation  are  invalid  merely  from  an  omission  to  have  them 
reduced  to  writing,  unless  the  statute  creating  it  makes  such  writing  indis- 
pensable as  evidence,  or  to  gives  them  an  obligatory  force.  If  the°statute 
imposes  such  restriction,  it  must  be  obeyed."  (12  Wheat.  69,  74.)  The 
same  principle  was  applied,  in  the  case  of  .the  United  States  ».  Fillebrown, 
7  Pet.  28,  to  the  acts  of  boards  of  public  agents  or  officers,  and  it  was  in 
that  case  accordingly  held,  that  the  board  of  commissioners  of  the  navy 
hospital  fund,  not  being  required  by  law  to  reduce  its  proceedings  to  writ- 
ing, in  order  to  make  them  binding,  oral  evidence  of  such  proceedings  (no 
record  having  been  made)  was  competent.  Langsdale  v.  Bonton,  12  Ind 
467. 

"  It  appears  to  us,  that  in  the  absence  of  allrecord,  it  might  be  competent 
for  the  defendants  (trustees  and  collector  of  the  corporation  justifying 
under  its  proceedings)  to  show,  by  parol,  the  proceedings  of  the  meetingt 
Where  there  is  a  record,  it  cannot  be  added  to  or  varied  by  parol.  Taylor 
v.  Henry,  2  Pick.  403.  But  where  there  is  an  omission  to  make  records, 
the  rights  of  other  persons  acting  under  or  upon  the  faith  of  a  vote  not 
recorded,  ought  not  to  be  prejudiced.  And  it  would  seem  that  the  right  in 
such  a  case  is  reciprocal  in  the  corporation   and  in  these  who  claim  ad- 


352  MUNICIPAL     CORPORATIONS.  [Ch.  XL 

;'to  keep  a  fair  and  regular  record  of  its  proceedings.1' 
The  statute  did  not  prescribe  that  nothing  but  a  recorded 
vote  or  written  document  should  bind  the  corporation  or  be 
received  as  evidence.  Such  written  evidence  was  not 
deemed  indispensable  unless  positively  required.  The 
direction  to  keep  a  record  was  regarded  as  directory. 

§  238.  Where  the  records  of  a  municipal  corporation 
have  been  so  carelessly  and  imperfectly  kept  as  not  to  show 
the  adoption  of  a  resolution  or  other  acts  of  the  city  council, 
and  there  is  no  written  evidence  in  existence,  parol  testi- 
mony may  be  admitted  ;  e.  g.,  to  show  that  certain  work 
was  done  by  authority  of  the  city,  by  proving  the 
passage  of  a  resolution  of  the  council,  the  appointment  of  a 
committee  to  make  the  expenditure,  their  report  after  the 
work  was  done,  and  its  adoption  by  the  council.1 

versely  to  it."  Per  Williams,  C.  J.,  Hutchinson  v.  Pratt,  11  Vt.  402,  421. 
But  compare  Stevens®.  Eden,  &c.  Society,  12  Vt.  688;  16  lb.  439;  17  lb. 
337. 

The  rights  of  creditors,  or  of  third  persons,  cannot  be  prejudiced,  by  the 
neglect  of  the  council  to  keep  proper  minutes;  against  the  corporation 
what  the  council  in  fact  did,  may  be  shown  by  evidence  aliunde  the  record 
kept  by  it.  Bigelow  v.  Perth  Auiboy,  1  Dutch.  (N.  J.)  297,  1855;  San  An- 
tonio v.  Lewis,  9  Texas,  69,  1852. 

Proof  of  the  action  and  orders  of  a  municipal  board  of  health,  see  chapter 
on  Ordinances,  post,  sec.  305,  note. 

1  Ross  v.  Madison,  1  Ind.  (Carter)  281,  1848;  Langsdale  v.  Bonton,  12 
Ind.  467;  Indianapolis  v.  Imberry,  17  Ind.  175,  179;  Delphi  v.  Evans  (re- 
viewing previous  cases),  36  Ind.  90,  1871.  In  the  same  state,  however, 
county  commissioners  and  township  trustees  are  required  by  law  to  keep  a 
true  record  of  their  proceedings,  and  it  is  held  that  they  "  can  only  speak 
by  their  record  "  when  legally  assembled.  County  Commissioners  v.  Chit- 
v  ood,  8  Ind.  504,  507,  1851 ;  Trustees  v.  Osborne,  9  Ind.  458.  So,  in  Maine, 
"  school'distncts  are  required  by  law  to  keep  an  account  of  their  proceedings 
by  a  sworn  c*jrk,  and  such  proceedings  can  be  proved  only  by  the  record 
or  a  copy  thereof  duly  authenticated."  Jordan  «.  School  District,  38  Maine 
164,  1854.  The  records  of  public  or  quasi  corporations  are  not,  in  Ohio,  con- 
sidered to  be  "of  that  absolute  verity  that  any  person  shall  be  estopped  to 
show  the  truth  in  consequence  of  any  matter  which  they  contain  "  or  omit 
to  contain;  and  it  was  accordingly  adjudged  that  the  fact  whether  an  offi- 
cial bond  was  received  or  refused  and  rejected  may  be  shown  by  parol  evi- 
dence, on  which  point  the  record  was  silent.  Westerhaven  v.  Clive,  5  Ohio, 
136,  1821,  as  to  records  of  township  trustees.  See  Green  v.  State,  8  Ohio, 
810,  1838,  in  which  it  was  queried,  whether  the  county  commissioners  could 


Ch.  XI.1  CORPORATE   RECORDS.  353 

§  239.  Mandamus  is  an  appropriate  remedy  for  the 
duly  elected  and  authorized  officer  of  a  public  or  municipal 
corporation  to  compel  the  delivery  to  him  by  his  predecessor, 
or  by  an  usurper,  of  the  books,  papers,  records,  and  seal 
pertaining  to  the  office.1  And  such  a  corporation  may 
maintain  replevin  in  its  name  for  the  possession  of  its 
records  ;  and  this  action  is  maintainable  against  a  stranger 

appoint  an  agent  by  parol  or  only  by  record  ?  In  Iowa,  it  has  been  held 
tliat  where  no  record  entry  is  made  such  an  appointment  may  be  shown  by 
parol  testimony  and  that  the  agent  acted  accojdingly.  Poweshiek  County 
v.  Ross,  9  Iowa,  511;  Athearn  v.  District,  33  Iowa,  105,  1871;  and  see  ace. 
Ross  v.  Madison,  1  Carter  (Ind.),  281;  compare  Meeker  v.  Van  Rensselaer. 
15  Wend.  397.  Where  recording  is  not  required  by  charter  or  law,  resolu- 
tions of  a  council  are  admissible  in  evidence,  although  not  recorded.  Dar- 
lington v.  Commonwealth,  41  Pa.  St.  68.  See  post,  sec.  247 ;  Louisville  v. 
McKegney,  7  Bush.  (Ky.)  651,  construing  charter  as  to  requisites  of  the 
journal  required  to  be  kept  by  each  board  of  the  council. 

1  Proprietors  of  Church  v.  Slack,  7  Cush.  226,  239,  1851  ;  Common- 
wealth v.  Athearn,  3  Mass.  285  ;  Rex  v.  Wildman,  2  Strange,  879;  King  v. 
Ingram,  1  W.  Bl.  50;  King  v.  Round,  4  Ad.  &E1.  139;  Cranford  v.  Powell, 
2  Burr.  1013;  Rex*.  Clapham,  1  Wils.  305  ;  3  Bl.  Com.  310;  Kimball  ». 
Lamprey,  19  N.  H.  215,  1848,  where  the  above  authorities  are  cited  and 
digested  by  Gilchrist,  C.  J. ;  Taylor  v.  Henry,  2  Pick.  397 ;  Parish,  &c.  v. 
Stearns,  21  Pick.  148,  156;  Bates  v.  Plymouth,  14  Gray,  163;  Perkins  v. 
Weston,  3  Cush.  549. 

,  The  following  points  have  been  ruled  in  respect  to  corporations  in  Eng- 
land: If  the  custody  of  their  documents  belong  to  one  of  their  officers  in 
virtue  of  his  office,  the  corporation  cannot  compel  him  to  deliver  them  up, 
but  may  require  that  he  submit  them  to  .their  inspection  whenever  they 
think  proper.  Rex  v.  Ipswich,  2  Ld.  Raym.  1238;  Rex  v.  Pigram.  2  Burr 
767  ;  Willc.  345  ;  Glover,  260.  Sometimes  the  custody  of  these  documen 
is  entrusted  to  the  town  clerk  or  other  officer,  merely  as  the  servant  of  the 
corporation,  in  which  case  they  may  appoint  another  to  receive  them,  and 
if  they  are  not  delivered  over  after  demand,  the  corporation  may  obtain 
possession  of  them  by  an  action  of  detinue  or  the  court  will  compel  a  de- 
livery by  mandamw.  II.  If  the  predecessor  in  office,  or,  he  being  dead, 
his  personal  representative,  or  another  person  having  possession  of  cor- 
porate documents  under  him,  refuse  to  deliver  them  over  to  the  successor 
or  the  corporation,  on  a  proper  application,  the  court  will  grant  a  mandamut 
to  compel  him  to  do  so.  Rex  v.  Nottingham,  1  Sid.  31 ;  Anonymous,  1 
Barnard,  402;  Willc.  345;  Glover,  260.  This  writ  is  said,  indeed,  to  lie 
to  any  person,  whether  stranger  or  corporator,  who  happens  to  be  in  pos. 
session  of  the  books  of  a  corporation,  and  who  refuses  to  deliver  them  up. 
Proprietors  of  Church  v.  Slack,  7  Cush.  226,  231,  1851,  per  Fletclier,  J.; 
Rex  v.  Ingram,  1  VV.  Bl.  50;  Willc.  246;  Glover,  231.  Post,  chap.  XX. 
23 


.J54  MUNICIPAL     CORPORATIONS.  [Ch.  XL 

or  any  officer  or  person  not  legally  entitled  to  the  custody 
if  the  records.1 

§  240.  Concerning  the  right  to  inspect  corporate  docu- 
ments and  papers,  the  following  points  have  been  ruled  as 
fcrtated  by  Mr.  Willcock :  Every  corporator  has  a  right  to 
inspect  all  the  records,  books,  and  other  documents  of  the 
corporation,  upon  all  proper  occasions  ;  and  if,  upon  appli- 
cation for  that  purpose,  the  officer  who  has  the  custody  re- 
fuse to  show  them,  the  court  will  grant  a  mandamus  to  en- 
force his  right.3  One  who  has  &  prima  facie  title  to  a  cor- 
porate office  has  a  right  to  inspect  such  documents  as  relate 
to  that  title,  and  ma}r  obtain  a  mandamus  for  this  purpose 
before  any  suit  has  been  instituted.3  A  corporator  has  a 
right  to  inspect  these  documents,  to  obtain  information  as  to 
his  rights,  whether  in  dispute  with  a  stranger  or  the  corpora- 
tion itself,  or  any  of  its  members/  When  the  corporator  s 
application  to  inspect  is  founded  on  his  general  right,  he 
has  a  mandamus,  but  when  it  is  founded  on  a  suit  pending, 

1  Parish,  &c.  v.  Stearns,  21  Pick.  148 ;  School  District  v.  Lord,  44  Maine, 
374 — replevin  for  records  of  district.  The  court,  holding  that  replevin 
would  lie,  say :  "  The  action  is,  therefore,  rightfully  brought,  and  may  be 
maintained  if  the  defendant  was  not  the  legal  clerk  of  the  district."  Per 
Rice,  J.,  44  Maine,  374,  384.  The  right  or  title  of  an  office  cannot  be  de- 
termined by  a  civil  action  between  the  respective  claimants,  as  by  an  action 
of  replevin  for  the  official  books  and  papers,  and  until  the  issue  as  to  the 
right  is  determined  by  quo  warranto  or  other  proper  proceeding,  no  suit  in 
replevin  can  be  maintained  by  one  claimant  against  the  other  for  the  posses- 
sion of  the  appurtenances  of  the  office.  Desmond  v.  McCarty,  17  Iowa, 
525.  In  La  Grange  v.  State  Treasurer,  24  Mich.  466,  the  court  decided  that 
replevin  does  not  lie  for  papers  filed  in  a  public  office.     Post,  sec.  684. 

8  Rex  ».  Shelley,  3  Term  R.  142;  Rex  v.  Babb,  lb.  580;  Harrison  v. 
Williams,  3  Barn.  &  Cress.  162;  Rogers  v.  Jones,  5  D.  &  R.  484;  Willc. 
347 ;  Glover,  262.  Any  person  sufficiently  interested  is  entitled  to  inspect 
entries  in  books  of  public  corporations  relating  to  public  matters  of  the 
corporation,  where  the  evidence  is  required  in  a  civil  action.  Grant  Corp. 
311.  See,  also,  People  v.  Cornell,  47  Barb.  329,  in  which  it  is  held,  that  a 
corporator  without  any  special  or  private  interest  has  the  right  to  inspect 
and  take  copies  of  all  public  documents  and  records,  under  reasonable  re- 
strictions to  secure  the  safety  of  the  originals. 

8  Rex  v.  Newcastle,  2  Stra.  1223;  Rex  v.  Lucas,  10  East,  235;  Rex®. 
Purnell,  1  Wils.  242.     Post,  chap.  XX. 

4  Edwards  v.  Vesey,  Cas.  Temp.  Hardw.  128;  Rex  v.  Babb,  3  Term  R. 
580;  Rex  v.  Bridgman,  2  Stra.  1203;  Grant  on  Corp.  312. 


Ch.  XI.]  CORPORATE     RECORDS.  355 

"he  obtains  a  rule.1  In  an  action  by  one  corporation  against 
another,  mles  were  made  absolute  for  each  corporation  to 
inspect  so  much  of  the  books  and  records  as  related  to  the 
subject  iu  dispute.2  The  motion  for  the  rule  to  inspect  and 
to  have  copies  should  be  supported  by  affidavits  showing 
the  foundation  of  the  claim,  the  application,  the  proper 
officer  and  his  refusal.  The  rule  will  require  the  expense 
attending  obedience  to  be  borne  by  the  applicant,  and  will, 
in  proper  cases,  allow  the  officer  a  remuneration  for  his 
trouble.  If  the  officer  disobey,  without  sufficient  reason, 
the  rule  to  allow  an  inspection  or  to  give  copy  of,  or  to  pro- 
duce corporate  documents,  the  court  will  grant  an  attach- 
ment against  him.3 

§  241.  A  public  or  municipal  corporation,  required  by 
law  to  keep  a  record  of  its  public,  or  official,  proceedings, 
may  itself  use  such  records  as  evidence  in  suits  to  which  it 
is  a  party  ;  but  the  records  must  first  be  properly  authenti- 
cated.4     Indeed,   in  actions  generally,   including    actions 

1  Rex  v.  Shelley,  3  Term  R.  142. 

*  Mayor  of  London  v.  Lynn  Regis,  1  H.  Bl.  206;  Mayor,  &c.  of  Southamp- 
ton v.  Graves,  8  Term  R.  592. 

1  Willc.  352,  353 ;  Grant,  311  et  seq.  See,  also,  People  v.  Mott,  1  How. 
Pr.  R.  247;  Cockbum  v.  Bank,  13  La.  An.  289;  People  v.  Walker,  9  Mich. 
328. 

*  School  District  v.  Blakeslee,  13  Conn.  227,  1839;  Denning  v.  Roome,  f> 
Wend.  651 ;  Wood  v.  Jefferson  County  Bank,  9  Cow.  205;  State  v.  Van  Win- 
kle, 1  Dutch.  (N.  J.)  73;  McFarlane  v.  Insurance  Company,  4  Denio,  392; 
Turnpike  Company  v.  McKean,  10  Johns.  154.  Denning  v.  Roome,  above 
cited,  holds,  that  the  original  minutes  or  records  of  the  corporation  of  a  city 
were  competent  evidence  of  corporate  acts,  without  further  proof  of  their 
verity.  Records  of  corporation  held  admissible,  though  not  required  by 
law  to  be  kept,  and,  where  defective,  explainable  by  parol  evidence.  Gear- 
hart  v.  Dixon,  1  Pa.  St.  224,  1845 ;  Adams  v.  Mack,  3  N.  H.  493,  499,  per 
Richardson,  C.  J. 

The  following  points  have  been  decided  respecting  English  corporations: 
Where  charters  or  corporation  books  are  to  be  given  in  evidence,  being 
records  or  instruments  of  a  public  nature,  they  may  themselves  be  produced ; 
and  examined  copies  of  their  contents  may  also  be  given  in  evidence.  The 
Court  of  King's  Bench  will  not  make  a  rule  to  produce  the  originals,  unless 
it  be  shown  by  affidavit  that  a  new  entry,  rasure,  or  some  other  circumstance, 
renders  an  inspection  necessary.  To  give  books  this  public  character,  it 
must  appear,  if  they  be  questioned,  that  they  have  been  publicly  kept,  and 
that  entries  have   been   made  by  the  proper  officers;   not  but  that  entries 


356  MUNICIPAL     CORPORATIONS.  [Ch.  XJL 

against  agents  or  officers  of  the  corporation,  as  individuals, 
the  original  minutes  or  records  of  the  coloration  are  com- 
petent evidence  of  the  acts  and  proceedings  of  the  corpora- 
tion. Duly  authenticated  copies  have  often  been  received 
in  evidence,  where  the  original  document  or  proceeding  was 
of  a  public  nature.' 

made  by  other  persons  may  be  good,  if  the  town  clerk  be  sick  or  refuses  to 
attend,  which,  however,  must  be  proved,  and  the  reason  why  they  were  not 
made  by  the  proper  officer  shown.  Rex  v.  Mothersell,  1  Stra.  93 ;  Brocas  v. 
Mayor,  &c.  of  London,  1  Stra.  307;  Rex  v.  Gwyn,  Mayor,  &c,  1  Stra.  401; 
Willc.  343;  Glover,  258;  Rex  v.  Smith,  1  Stra.  126;  Grant,  318.  Whoever 
produces  the  book  must  establish  its  authority  before  he  delivers  it  in,  and 
may  be  required  to  show  where  it  has  been  kept,  and  how  it  came  to  his 
possession.  Rex  v.  Mothersell,  1  Stra.  93;  Rex  v.  Thetford,  12Vin.  Abr.  90, 
p.  16;  Willc.  344;  Glover.  258.  A  book  containing  minutes  of  some  cor- 
porate acts  which  occurred  ten  years  ago,  entirely  written  by  the  relator's 
clerk,  who  was  not  an  officer  of  the  corporation,  and  appearing  never  to 
have  been  kept  among,  or  esteemed  as,  one  of  the  corporate  documents,  or 
even  seen  before  the  present  application  for  an  information,  is  not  admissible 
as  a  corporate  document.  Rex  v.  Mothersell,  1  Stra.  93.  Nor  is  the  copy 
of  a  letter  made  fifty  years  ago  and  found  in  the  corporation  chest,  but  the 
original  must  be  first  accounted  for,  as  though  it  had  been  found  in  the 
possession  of  a  private  person.  Rex  v.  Gwyn,  1  Stra.  401.  Nor  are  entries 
of  a  private  nature,  in  the  public  books  of  a  corporation,  evidence  for  them 
in  support  of  a  right  which  they  claim,  for  this  were  allowing  the  party  to 
fabricate  evidence  for  themselves.  Rex  v.  Debenham,  2  B.  &  Ad.  187; 
Marriage  v.  Lawrence,  3  B.  &  Ad.  144;  Grant  on  Corp.  318,  319,  and  cases; 
2  Phill.  Ev.  122 ;  Angell  &  Ames  Corp.  sec.  679 ;  Willc.  344. 

1  Denning  v.  Roome,  6  Wend.  651,  1831 ;  citing  Owings  v.  Speed,  5 
Wheat.  424;  Rex  v.  Mothersell,  1  Stra.  93;  12  Vin.  Abr.  90,  pi.  16.  See, 
also,  People  v.  Adams,  9  Wend.  333 ;  Wood  v.  Jefferson  County  Bank,  9 
Cow.  194,  205;  Angell  &  Ames  on  Corp.  sec.  679;  Turnpike  Company  a. 
McKean,  10  Johns.  154.  In  Denning  v.  Roome,  supra,  the  defendant  was 
sued  in  his  individual  capacity  for  removing,  by  order  of  the  city  council,  a 
certain  fence  erected  by  the  plaintiff.  The  defendant  (although  it  was 
argued  that,  being  the  agent  of  the  corporation,  the  latter  should  be  con- 
sidered as  the  party  and  its  own  records  as  incompetent  in  its  own  favor  to 
justify  its  acts)  was  allowed  to  show  by  the  records  of  the  corporation  that 
the  fence  was  on  a  portion  of  the  public  street. 

The  clerk  of  a  city  or  town  is,  by  law,  the  proper  certifying  officer  to 
authenticate  copies  of  the  votes  and  ordinances  thereof.  Such  copies  are 
admissible  in  evidence  without  preliminary  proof,  as  in  ordinary  instruments! 
of  the  genuineness  of  the  clerk's  signature,  but  are,  of  course,  only  prima 
facie  evidence,  and  they  may  be  shown  to  be  inaccurate,  false,  or  forged. 
Commonwealth  v.  Chase,  6  Cush.  248,  1850.  Where  the  original  document 
is  of  a  publio  nature,  and  would  be  evidence  if  produced,  it  is  not  necessary 


Ch.  XL]  CORPORATE  RECORDS.  35? 

§  242.  An  admission  by  a  corporation  of  a  fact  or  of  a 
liability,  dnly  and  properly  made,  is,  of  conrse,  evidence 
against  it.  Bnt  a  municipal  corporation,  by  accepting,  that 
is,  receiving  the  report  of  a  committee  of  inquiry,  does  not 
admit  the  truth  of  the  facts  stated  therein  ;  and  such  a  re- 
port, though  accepted  by  a  vote  of  the  corporation,  is  not 
admissible  in  evidence  against  it.1    In  an  action  of  assumpsit 

to  show  the  document  itself,  for  it  may  be  required  at  many  places  at  the  same 
time;  for  that  reason  an  immediate  sworn  copy,  made  by  the  proper  officer, 
will  be  admitted.  Rex  v.  Lord  George  Gordon,  Doug.  593;  1  Phil.  Ev. 
405;  Willc.  344;  Glover,  259.  Grant,  318,  lays  down  the  rule  generally, 
that  sworn  copies  of  public  entries  in  books  of  public  corporations  are  ad- 
missible wherever  the  originals  would  be,  and  the  corporation  will  not  be 
compelled  to  produce  their  books  in  court  except  for  reasons  shown.  It  has, 
however,  been  held,  that  the  by-laws  of  a  corporation,  in  the  absence  of 
special  provision,  must  be  proved  by  the  production  of  the  by-laws  them 
selves,  as  these  are  the  primary  evidence.  Lumbard  v.  Aldrich,  8  N.  H.  31 , 
Moore  v.  Newfield,  4  Greenl.  44;  Hallowell  Bank  v.  Hamlin,  14  Mass.  178. 
So,  of  the  votes  of  a  corporation,  the  record  is  the  best  evidence.  Haven  v. 
Asylum,  13  N.  H.  532.  See,  also,  Manning  v.  Parish,  6  Pick.  6;  Taylors. 
Henry,  2  Pick.  403 ;  Green  v.  Indianapolis,  25  Ind.  490.  It  may  be  re- 
marked that  there  are  statutes  in  various  states  under  which  certified  copies 
would  be  receivable  in  evidence  instead  of  the  originals.  Licenses  from  a 
city  or  town  authorizing  persons  to  pursue  particular  employments,  &c, 
need  not  be  in  writing.     Boston  v.  Shaffer,  9  Pick.  415,  1830. 

1  Dudley  v.  Weston,  1  Met.  477,  1846 ;  followed  by  Collins  v.  Dorchester, 
6  Cush.  396,  1850 ;  and  both  relating  to  defective  highways.  In  the  King 
v.  Hardwick,  11  East,  578,  a  rated  parishioner  made  a  confession,  which 
was  admitted  in  evidence  against  the  parish,  on  the  ground  that  the  parish 
was  an  aggregate  corporation  or  company,  of  which  he  was  a  member: 
compare  Mayor,  &c.  v.  Long,  1  Camp.  68.  But  this  is  not  the  law  in  this 
country,  and  it  may  be  safely  laid  down  that  the  admission  of  a  corporator 
cannot  be  received  against  the  body.  Hartford  Bank  v.  Hart,  3  Day  (Conn.) 
493,  denying  King  v.  Hardwick,  supra;  Osgood  v.  Manhattan  Co.,  3  Cow. 
612,  623.  But  the  admission  of  an  officer  when  made  in  the  ordinary  course 
of  his  official  duty,  and  within  the  scope  of  his  powers,  may  be  admissible 
against  the  corporation.  Peyton  v.  Hospital,  3  C.  &  P.  363 ;  Angell  &  Amea 
on  Corp.  sec.  309 ;  lb.  sec.  659.     Ante,  sec.  176,  note. 

Notice  to  corporator  or  member  is  not  notice  to  the  corporation;  it  should 
be  formally  given  as  such  to  the  authorized  head  or  proper  officer;  Powles 
v.  Page,  3  Com.  B.  31 ;  Edwards  v.  Railroad  Co.,  1  Myl.  &  Cr.  659 ;  Grant, 
Corp.  315.  Lancey  brought  an  action  for  libel  against  the  mayor  and  clerk 
of  the  city  of  Bangor  for  the  following  statement  contained  in  their  annual 
report:  "  Balance  due  from  John  Lancey,  Collector,  $6,004.50."  The  bal- 
ance was  shown  to  be  less.  It  was  held  that  there  was  no  presumption  of 
law  that  the  officers  of  a  city  or  town  knew  the  contents  of  the  city  records, 


358  MUNICIPAL     CORPORATIONS.  [Ch.  XI 

against  a  town  corporation,  to  support  his  cause  of  action, 
the  plaintiff  produced  the  books  of  the  corporation,  by 
which  it  appeared  that  the  sum  demanded  in  the  declaration 
had  been  allowed  by  the  council  to  the  plaintiff  on  the  5th 
of  September,  on  final  settlement,  at  which  time  the  plain- 
tiff was  present  and  assented  to  the  settlement.  The  de- 
fendant contended  that  the  resolution  had  been  passed  by 
mistake,  and  offered  to  show,  by  the  same  books,  the  pass- 
age, three  days  afterwards,  in  the  plaintiff's  absence,  of  a 
resolution  rescinding  the  amount  of  the  plaintiff's  account. 
It  was  held  that  the  subsequent  resolution  was  not  com- 
petent evidence,  the  court  basing  this  opinion  on  the  prop- 
osition that  the  books  of  a  corporation  are  evidence  against, 
but  not  in  its  favor,  in  an  action  against  the  corporation  by 
a  stranger.1 

and  no  rule  of  law  obliging  them  to  be  acquainted  therewith,  and  unless 
the  defendants  made  the  publication  maliciously  they  were  entitled  to  a 
verdict.  Lancey  v.  Bryant,  30  Maine  (17  Shep.)  466,  1849.  Ante,  sec.  176, 
note. 

1  Mayor  v.  Wright,  2  Port.  (Ala.)  230,  1835 ;  citing  1  Stark  Ev.  292 ;  but 
is  not  the  proposition  too  broadly  stated  ? 


Ch.  XH.l  REQUISITES     CF     ORDINANCES.  350 

CHAPTER  XII. 

Municipal  Ordinances  or  By-Laws. 

§  243.  This  subject  will  be  considered  under  the  follow- 
ing heads : — 

1.  Definition,  General  Nature,  and  Common  Law  Req- 
uisites of  Ordinances — sees.  244-264. 

2.  Of  the  Signiug,  Publication,  and  Recording — sees. 
265-269. 

3.  Of  the  Power  to  impose  Fines,  Penalties,  and  For 
feitures— sees.  270-287. 

4.  On  Whom  Binding,  and  Notice  thereof — sees.  288- 
290. 

5.  Ordinances  Relating  to  the  Licensing,  Taxing,  and 
Regulation  of  Amusements  and  Occupations,  including  the 
Sale  of  Intoxicating  Liquors — sees.  291-299. 

6.  Ordinances  Relating  to  Public  Offences — sees.  300- 
302. 

7.  Ordinances  Relating  to  the  Public  Health,  Safety 
and  Convenience ;  Herein  of  Hospitals,  Cemeteries,  and 
Burials  ;  Nuisances  ;  Markets  and  Inspection  Regulations  : 
Dangerous  Occupations  and  Practices ;  and  of  the  Police 
Power  and  General  Welfare  Clauses  in  Charters^secs.  303- 
340. 

8.  Mode  of  Enforcing  Ordinances  :  Herein  of  Actions 
and  Prosecutions,  and  their  Nature  ;  Mode  of  Pleading 
Ordinances ;  Requisites  of  Complaints  to  Enforce  Ordi- 
nances;  Construction,  Defences,  Evidence,  &c. — sees.  341- 
355. 

Definition,  General  Nature,  and  Common  Law  Requisites 
of  Ordinances. 

%  244.  Definition. — Under  the  general  term  of  ordi- 
nances have  been  sometimes  included  all  the  regulations  by 
which  a  corporation  is  governed,  including  special  charter 
or  statute  regulations,  as  well  as  b}r-laws.  In  this  country, 
the  terra  ordinance  is  not  usually  applied,  if  ever,  to  charters 


360  MUNICIPAL     CORPORATIONS.  [Ch.  XII. 

of  acts  of  the  legislature  respecting  municipal  corporations, 
regulating  their  powers  and  mode  of  action,  but  is  limited 
in  its  application  to  the  acts,  in  the  nature  of  local  laws, 
passed  by  the  proper  assembly  or  governing  body  of  the 
corporation.  Indeed,  in  general  and  professional  use,  the 
term  ordinance  is  almost,  if  not  quite,  equivalent  in  mean- 
ing to  the  term  by-law,  and  is  the  word  most  generally  used 
to  denote  the  by-laws  adopted  by  municipal  corporations. 
According  to  Lord  Coke,  the  word  by  or  bye  signifies  a 
habitation,  and  thence  a  by-law  in  England,  and  a  by-law 
or  ordinance  in  this  country,  may  be  defined  to  be  the  law 
of  the  inhabitants  of  the  corporate  place  or  district,  made 
by  themselves  or  the  authorized  body,  in  distinction  from 
the  general  law  of  the  country  or  the  statute  law  of  the 
particular  State.1 

>  Willc.  73;  2Kyd,  95,  98. 

Definition  and  Nature  of  Ordinances  or  By-Laws. — In  a  case  in  Massachu- 
setts, denying  to  towns  in  that  state  power,  under  the  statute,  to  prohibit  by 
ordinance  the  sale  of  intoxicating  liquor,  Mr.  Chief  Justice  Shaio  observed 
that  the  term  "  by-law  "  has  a  limited  and  peculiar  meaning,  and  is  used  to 
designate  such  ordinances  or  regulations  which  a  corporation,  as  one  of  its. 
legal  incidents,  has  power  to  make  with  respect  to  its  own  members  and  its 
own  concerns.  In  respect  to  municipal  and  quasi  corporations,  this  mean- 
ing has  been  somewhat  extended,  but  even  here  the  word  is  used  to  desig- 
nate such  ordinances  and  regulations  as  have  reference  to  legitimate  and 
proper  municipal  or  corporate  purposes.  There  is  a  broad  distinction 
between  the  power  of  a  public  corporation  to  make  "by-laws"  and  the 
general  power  to  make  "  laws;"  authority  to  make  the  former  does  not  in- 
clude the  power  to  legislate  upon  general  subjects.  Commonwealth  v. 
Turner,  1  Cush.  493.  A  municipal  by-law,  according  to  the  definition  of  a 
distinguished  English  judge,  is  a  rule  obligatory  over  a  particular  district, 
not  being  at  variance  with  the  general  laws  of  the  realm,  and  being  reason- 
able and  adapted  to  the  purposes  of  the  corporation;  and  any  rule  or  ordi- 
nance of  a  permanent  character  which  a  corporation  is  empowered  to 
make,  either  by  the  common  or  statute  law,  is  a  by-law.  Per  ParJce,  B.,  19 
Law  J.  (K  S.)  Q.  B.  135. 

Resolutions  and  Ordinances  Discriminated. — A  resolution  is  an  order  of  the 
council  of  a  special  and  temporary  character;  an  ordinance  prescribes  a  per- 
manent rule  of  conduct  or  government.  Blanchard*.  Bissell,  11  Ohio  St.  96, 
103,  per  Scott,  J.  Where  the  charter  commits  the  decision  of  a  matter  to 
the  council  and  is  silent  as  to  the  mode,  the  decision  may  be  evidenced  by  a 
resolution,  and  need  not  necessarily  be  by  an  ordinance.  State  v.  Jersey  City. 
3  Dutch.  (N.  J.)  493,  1859.  A  resolution  has  ordinarily  the  same  effect  as  an 
ordinance,  as  both  are  legislative  acts.     Sowers.  Philadelphia,  35  Pa.  St.  231„ 


Ch.  XE.]  REQUISITES     OF     ORDINANCES.  361 

§  245.  Authority  Delegated  to  Municipalities — Nature 
of  Ordinances— Repeal. — Although  the  proposition  that 
the  legislature  of  a  State  is  alone  competent  to  make  laws  is 
true,  yet  it  is  also  settled  that  it  is  competent  for  the  legisla- 
ture to  delegate  to  municipal  corporations  the  power  to 
make  by-laws  and  ordinances,1  which,  when  authorized.' 

I860 ;  Gas  Company  v.  San  Francisco.  6  Cal.  190.  Where  the  power  to  make 
ordinances  and  by-laws  is  general,  and  no  form  in  which  these  shall  be 
enacted  or  passed  is  prescribed,  it  was  held  that  an  ordinance  containing  a 
prohibition  and  annexing  a  penalty  was  valid,  notwithstanding  it  purported 
by  its  terms  to  be  a  resolution.  In  substauce  it  was  an  ordinance  or  regula- 
tion, and  the  form  in' which  it  was  passed  did  not  make  it  void.  Municipal- 
ity v.  Cutting,  4  La.  An.  335,  1849.  By  one  section  of  the  charter,  the  coun- 
cil was  authorized  to  make  "  by-laws,  ordinances,  resolutions,  and  regula- 
tions," and  by  another  "by-laws  and  ordinances"  were  to  be  submitted  to 
the  mayor  for  his  approval,  and  it  was  held  that  there  was  no  such  distinc- 
tion as  to  require  that  "by-laws  and  ordinances"  must,  and  "regulations 
and  resolutions  "  need  not,  be  submitted  to  the  mayor,  to  be  approved  by 
him.  Kepner  v.  Commonwealth,  40  Pa.  St.  124.  The  words  "  regulation," 
"resolution,"  and  "ordinance,"  as  used  in  the  charter,  defined  by  Lowrie, 
C.  J.     lb. 

Mode  of  Exercising  Power. — Where  the  power  to  do  certain  acts  or  pass 
certain  ordinances  is  conferred  upon  the  council,  but  the  particular  mode  of 
exercising  the  power  is  not  prescribed,  this  may  be  done  by  ordinance,  and 
any  mode  may  be  adopted  which  does  not  infringe  the  charter  or  general 
law  of  the  land.  Thus,  for  example,  power  was  given  to  a  city  "to  levy 
and  collect  a  special  tax,"  not  specifying  the  mode  of  collection;  held  that 
an  ordinance  requiring  the  mayor  to  enforce  the  collection  of  the  tax  by 
suit,  in  the  nature  of  an  action  for  debt,  was  valid,  as  it  did  not  violate  the 
charter  or  the  general  law.  Cincinnati  v.  Gwynne.  10  Ohio,  192;  Markle  v. 
Akron,  14  Ohio,  586,  1846.  Prescribed  mode  essential.  Crosse  v.  Morris- 
town,  18  N.  J.  Eq.  305.     Post,  chap.  XIX. 

1  Perdue  v.  Ellis,  18  Geo.  586,  1855;  St.  Paul  v.  Coulter,  12  Minn.  41, 
1866;  Commonwealth  v.  Duquet,  2  Yeates  (Pa.),  493;  Hill  v.  Decatur,  22 
Geo.  203;  State  v.  Clark,  8  Fost.  (N.  H.)  176,  1854;  Milne  v.  Davidson,  5 
Martin  (La.)  586,  1827;  Marble  v.  Akron,  14  Ohio,  586,590,  1846;  Mayor, 
&c.  v.  Morgan,  7  Martin  (La.  O.  S.)  1,  per  Martin,  J. ;  Tri  gaily  v.  Memphis, 
6  Coldw.  (Tenn.)  382,  1869;  Metcalf  v.  St.  Louis,  11  Mo.  103,  1847.  In 
Strauss  v.  Pontiac,  40  111.  301,  1866,  the  Supreme  Court  held  that  a  pro- 
vision in  a  town  charter  forbidding  any  person  from  doing  a  certain  act, 
fixing  the  amount  of  fine,  and  prescribing  the  penalty,  was  a  complete 
enactment  of  itself;  that  an  ordinance  to  the  same  effect  was  void,  and  that 
a  party  could  be  prosecuted  only  under  the  charter,  and  not  under  the 
ordinance.  In  view  of  the  general  authority  given  in  the  same  charter  to 
make  all  ordinances  necessary  to  carry  into  effect  the  powers  granted  in  the 
charter,  the  correctness  of  this  decision  may  admit  of  fair  debate,  although 


362  MUNICIPAL    CORPORATIONS.  [Ch.  XH. 

have  the  force,  as  to  persons  bound  thereby,  of  laws  passed 
by  the  legislature  of  the  State.1 

§  246.  Ordinances  being  among  the  most  important 
and  solemn  acts  of  a  corporation,  it  is  essential  to  their 
validity  that  they  shall  be  adopted  by  the  proper  body, 
duly  assembled,  and  in  the  manner  prescribed  by  the 
charter.  What  is  necessary  to  constitute  a  valid  corporate 
meeting,  and  the  manner  of  performing  valid  corporate  acts, 
are  subjects  treated  of  in  another  chapter.2  When  the 
mode  of  enacting  ordinances  is  prescribed,  it  must  be  pur- 
sued. Thus,  if  the  charter  provides  that  no  by-law  shall 
be  passed  unless  introduced  at  a  previous  regular  meeting, 
this  is  a  restriction  on  the  power,  and  must  be  observed  ; 
and,   accordingly,  an   ordinance  for  opening  a  street  was 

it  is  undoubtedly  true  that  no  ordinance  is  necessary  where  the  prohibition 
in  the  charter  is  complete,  the  penalty  fixed,  and  the  remedy  prescribed. 
Ashton  v.  Ellsworth,  48  111.  299. 

Heland  v.  Lowell,  3  Allen,  407,  1862;  Church  v.  City,  &c,  5  Cow.  538 
1826;  St.  Louis  v.  Boffinger,  19  Mo.  13,  15,  per  Gamble,  J.;  St.  Louisa. 
Bank,  49  Mo.  574;  Jones  v.  Ins.  Co.,  2  Daly  (N.  Y.)  307;  McDermott  v. 
Board  of  Police,  5  Abb.  Pr.  R.  422,  1857.  A  city  council  is  "  a  miniature 
general  assembly,  and  their  authorized  ordinances  have  the  force  of  laws 
passed  by  the  legislature  of  the  state."  Per  Scott,  J.,  Taylor  v.  Carondelet 
(forfeiture  clause  in  lease),  22  Mo.  105,  1855.  In  Hopkins  v.  Mayor  of 
Swansea,  4  M.  &  W.  621,  640,  Lord  Abinger  said:  "The  bylaw  has  the 
same  effect  within  its  limits,  and  with  respect  to  the  persons  upon  whom  it 
lawfully  operates,  as  an  act  of  parliament  has  upon  the  subjects  at  large." 
Valid  ordinances  of  corporations  are  as  binding  on  the  corporators  and  in- 
habitants of  the  place  as  the  general  laws  of  the  state  upon  the  citizens  at 
large.  Milne  v.  Davidson,  5  Martin  (La.)  586,  1827.  And,  therefore,  it  has 
been  held,  that  contracts  between  the  inhabitants  of  a  city  in  violation  of 
the  express  provisions  of  a  valid  ordinance  of  a  municipal  corporation  are 
illegal,  and  cannot  be  enforced.  Milne  v.  Davidson  (lease  of  house  for  pri- 
vate hospital),  5  Martin  (La.)  586,  1827;  Heland  v.  Lowell,  3  Allen,  407, 
1867;  but  compare  Baker  v.  Portland,  58  Maine,  199;  S.  C,  10  Am.  Law 
Reg.  (N.  S.)  559,  and  see  Judge  Redjiei&s  note.  The  courts  will  not  enjoin 
the  passage  of  unauthorized  ordinances,  and  will  ordinarily  act  only  when 
steps  are  taken  to  make  them  available.  Chicago  v.  Evans,  24  111.  52,  1860; 
Smith  v.  McCarthy,  56  Pa.  St.  359.  But  if  a  party  is  injuriously  affected  by 
an  ordinance,  he  may  have  its  validity  judicially  determined  before  it  ia 
attempted  to  be  executed.  State  v.  Paterson,  34  N.  J.  Law,  163.  State  ». 
Jersey  City,  lb.  .31,  390,  1870. 
5  Ante,  chap.  X. 


oh.  XII.]  REQUISITES    OF    ORDINANCES.  363 

adjudged  void,  on  the  ground  that  the  name  of  one  of  the 
commissioners  was  changed  without  laying  the  ordinance 
over  until  another  meeting.1  Municipal  ordinances  other- 
wise valid,  may,  like  an  act  of  the  legislature,  be  adopted 
to  take  effect  in  future  and  upon  the  happening  of  a  con- 
tingent event.2 

§  247.  In  the  absence  of  required  record  evidence  of 
the  passage  of  an  ordinance,  it  is  not  competent  to  estab- 
lish its  adoption  by  extrinsic  testimony  ;3  but  where  unan- 
imity is  necessary  to  legal  authority  to  make  an  order, 
and  an  order  is  entered,  it  will  be  presumed,  when  the  con- 
trary does  not  appear,  that  it  was  made  with  the  required 
unanimity.4 

§  248.  Courts  will  not,  in  general,  inquire  into  the 
motives  of  members  of  the  council  in  passing  ordinances.5 
But  in  Ohio,  in  a  case  where  the  legislature  chartered  a  gas 
company,  reserving  the  power  of  control,  and  subsequently 
empowered  the  city  council  to  regulate  the  price  of  gas,  the 
court  considered  the  intention  to  be  to  limit  the  company  to 
a  fair  and  reasonable  price,  and  that  it  must  be  fairly  ex- 
ercised, and  if,  in  the  colorable  exercise  of  the  power,  a 
majority  of  the  members,  for  a  fraudulent  purpose,  com- 
bined to  fix  the  price  at  a  rate  at  which  they  knew  it  could 
not  be  made  and  sold  without  loss,  their  action  would  not 

1  State  v.  Bergen,  33  N.  J.  Law,  39,  1868,  distinguished  from  State  v. 
Jersey  City,  2  Dutch.  448,  where  the  variance  was  immaterial.  Construction 
of  similar  restriction  requiring  previous  publication.  In  re  Douglass,  46 
N.  Y.  42;  Matter  of  K  Y.,  &c.  School,  47  N.  Y.  556;  Dubuque  v.  Wooton, 
28  Iowa,  571. 

5  Baltimore  v.  Clunet,  23  Md.  449,  1865 ;  Railway  Company  v.  Baltimore, 
21  Md.  93,  1863;  State  v.  Kirkley,  29  Md.  85,  1868.     Ante,  sec.  23. 

•Covington  v.  Ludlow,  1  Met.  (Ky.)  295,  1858.  See  ante,  sees.  238, 
204  n.,  234;  post,  sec.  269. 

4  Lexington  v.  Headley,  5  Bush  (Ky.)  508,  1869;  Covington  v.  Boyle,  6 
Bush  (Ky.)  204,  1869;  McCormick  v.  Bay  City,  23  Mich.  457,  1871;  see 
Steckert  v.  East  Saginaw,  22  Mich.  104 ;  post,  sec.  639. 

6  Freeport  v.  Marks,  59  Pa.  St.  253;  Buell».  Ball,  20  Iowa,  282  (collateral 
action  between  third  persons). 


364  MUNICIPAL     CORPORATIONS.  [Cn.  XII 

bind  the  company,  and  in  such  a  case,  their  good  faith,  it 
was  held,  might  be  inquired  into.1 

§  249.  Since  a  valid  by-law  never  becomes  obsolete, 
it  remains  in  force  until  repealed  by  the  legislature  or  the 
corporation.  The  power  to  make  includes  the  power  to  re- 
peal. The  repeal  cannot  operate  retrospectively  to  disturb 
private  rights  vested  under  it.a  Therefore,  the  legislature 
having  authorized  a  religious  corporation  to  establish  a 
cemetery  within  the  limits  of  a  city,  on  obtaining  the  con- 
sent of  the  city,  and  such  consent  having  been  given,  the 
city  authorities  cannot,  after  their  consent  has  been  acted 
upon,  repeal  the  resolutions  giving  it,  and  enjoin  the  re- 
ligious corporation  from  the  use  of  the  cemetery,  unless, 
indeed,  it  is  shown  to  be  an  actual  nuisance,  detrimental  to 
the  health  of  the  city,  in  which  case  its  police  and  govern- 
mental powers  might  doubtless  be  exercised.3 

§  250.  Mode  of  Conferring  the  Power — Construction 
of  Grants  of  Authority. — Municipal  charters,  or  incorpo- 
rating acts,  are  sometimes  silent  as  to  the  power  to  pass  oy- 

1  State  v.  Cincinnati  Gas  Company,  18  Ohio  St.  262,  1868,  distinguished 
from  Fletcher  v.  Peck,  6  Cranch,  87 ;  Bank  v.  United  States,  1  G.  Greene, 
553.  The  courts  will  not  inquire,  even  on  the  complaint  of  the  state,  into 
the  motives  which  governed  members  of  the  legislature  in  the  enactment  of 
a  law,  or  allow  to  be  shown,  for  the  purpose  of  defeating  the  operation  of 
the  law,  that  it  was  passed  by  fraud,  corruption,  and  bribery  of  the  mem- 
bers. Wright  v.  Defrees,  8  Ind.  298;  followed,  McCulloch  v.  State,  11  lb. 
424,  431,  1858;  S.  P.  Sunbury,  &c.  Railroad  Company  v.  Cooper,  7  Am. 
Law  Reg.  158,  1858. 

3  Rex  v.  Ashwell,  12  East,  22;  3  Term  R.  198;  State  v.  City  Clerk,  &c.  7 
Ohio  St.  355;  Stoddard  v.  Gilman,  22  Vt.  568;  Pond  v.  Negus,  3  Mass.  230; 
ante,  chap.  X. ;  State  v.  Graves,  19  Md.  351,  1862 ;  Bigelow  v.  Hillman,  37 
Maine,  52;  Reiff  v.  Conner,  5  Eng.  (Ark.)  241;  Road  Case,  17  Pa.  St.  71,75. 
An  act  changing  an  incorporated  town  into  a  city  does  not  of  itself  repeal 
pre-existing  ordinances.  Per  Strong,  J.,  Trustees  of  Academy  v.  Erie,  31 
Pa.  St.  515,  1858.     Ante,  sec.  52;  note. 

'  New  Orleans  v.  St.  Louis  Church,  11  La.  An.  244,  1856,  distinguished 
from  Presbyterian  Church  v.  Mayor,  5  Cow.  538;  Musgrove  v.  Catholic 
Church,  10  La.  An.  431.  Ante,  sec.  61.  The  repeal  of  an  ordinance  puts 
an  end  to  a  pending  prosecution  under  the  repealed  ordinance,  unless  there  be 
a  saving  clause.  The  contrary  rule  as  to  state  statutes  held  not  to  apply  to 
by-laws  or  ordinances.     Naylor  v.  Galesburg,  56  111.  285,  1870. 


Ch.  XII.]  REQUISITES     OF     ORDINANCES.  'S6t 

laws  or  ordinances,  and  where  this  is  the  case,  the  municipal 
body  has  the  power,  incidental  to  all  corporations,  to  enact 
appropriate  by-laws.  Occasionally,  the  charter  or  incorpo- 
rating act,  without  any  specific  enumeration  of  the  pur- 
poses for  which  by-laws  may  be  made,  contains  a  general 
and  comprehensive  grant  of  power  to  pass  all  such  as  may 
seem  necessary  to  the  well-being  and  good  order  of  the  place. 
More  frequently,  however,  the  charter  or  incorporating 
act  authorizes  the  enactment  of  by-laws  in  certain  speci- 
fied cases  and  for  certain  purposes  ;  and  after  this  specific 
enumeration  a  general  provision  is  added,  that  the  corpora- 
tion may  make  any  other  by-laws  or  regulations  necessary 
to  its  welfare,  good  order,  &c,  not  inconsistent  with  the 
constitution  or  laws  of  the  state.  This  difference  is  essen- 
tial to  be  observed,  for  the  power  which  the  corporation 
would  possess  under  what  may,  for  convenience,  be  termed, 
"the  general  welfare  clause,"  if  it  stood  alone,  may  be 
limited,  qualified,  or,  when  such  intent  is  manifest,  impliedly 
taken  away  by  provisions  specifying  the  particular  pur- 
poses for  which  by-laws  may  be  made.  It  is  clear  that  the 
general  clause  can  confer  no  authority  to  abrogate  the  lim- 
itations contained  in  special  provisions.  When  there  are 
both  special  and  general  provisions,  the  power  to  pass  by- 
laws under  the  special  or  express  grant  can  only  be  exer- 
cised in  the  cases,  and  to  the  extent,  as  respects-those  mat- 
ters, allowed  by  the  charter  or  incorporating  act ;  and  the 
power  to  pass  by-laws  under  the  general  clause  does  not 
enlarge  or  annul  the  power  conferred  by  the  special  pro  • 
visions  in  relation  to  their  various  subject  matters,  but  gives 
authority  to  pass  by-laws,  reasonable  in  their  character, 
upon  all  other  matters  within  the  scope  of  their  municipal 
authority,  and  not  repugnant  to  the  constitution  and  general 
laws  of  the  state.1    And  it  has  been  very  properly  held, 

1  State  v.  Ferguson,  33  N.  H.  424,  1856,  where  this  subject  is  ably 
treated  in  a  judgment  delivered  by  Mr.  Justice  Foster,  holding  a  by-law  of 
the  city  of  Concord,  in  relation  to  the  sale  of  intoxicating  liquor,  invalid 
as  contravening  the  special  provisions  of  the  charter,  and  therefore  not 
sustainable  under  the  general  welfare  clause  of  the  charter. 

"The  power  to  make  by-laws,  when  not  expressly  given,  is  implied  as 
an  incident  to  the  very  existence  of  a  corporation,  but  in  the  case  of  an 
express  grant  of  the  power  to  enact  by-laws  limited  to  certain  speciik-J 


366  MUNICIPAL     CORPORATIONS.  [Ch.  XII 

that  a  special  grant  of  power  to  a  municipal  corporation  to 
adopt  ordinances  on  enumerated  subjects  connected  with 
municipal  concerns,  is  in  addition  to  the  incidental  power  of 
the  corporation.1 

§  251.  Ordinances  cannot  enlarge  or  change  the 
Charter  or  Statute. — Since  all  of  the  powers  of  a  corpora- 
cases  and  for  certain  purposes,  the  corporate  power  of  legislation  is  con- 
fined to  the  objects  specified,  all  others  being  excluded  by  implication. " 
Per  Saicyer,  J.,  arguendo,  in  State  v.  Ferguson,  33  K.  H.  424,  430,  1856; 
citing  2  Kyd  on  Corp.  102;  Angell  &  Ames  on  Corp.  177;  and  Child  v. 
Hudson's  Bay  Company,  2  P.  TVms.  207.  The  true  rule  in  such  cases  may, 
perhaps,  be  correctly  expressed  to  be,  that  the  enumeration  of  special  cases 
does  not,  unless  the  intent  be  apparent,  exclude  the  implied  power  any  fur- 
ther than  necessarily  results  from  the  nature  of  the  special  provisions: 
Heisembrittle  v.  Charleston,  2  McMullen,  233;  "Wadleigh  v.  Gilrnan,  3 
Fairf.  (Maine)  408 ;  State  v.  Clark,  8  Foster  (K  H.)  176,  and  comments  in 
33  N.  H.  432;  State  v.  Freeman,  38  N.  H.  426;  Commonwealth  v.  Turner.  1 
Cush.  (Mass.)  493;  Collins  v.  Hatch,  18  Ohio,  528.  See  New  Orleans  v. 
Philipi  (taxation),  9  La.  An.  44. 

In  Georgia,  the  Superior  Courts  adopt  the  following  as  the  true  rule  For 
ascertaining  the  extent  of  the  power  of  a  city  to  pass  ordinances.  "  The  citv 
council  is  restrained  to  such  matters,  whether  specially  enumerated  or  in- 
cluded under  general  grant,  as  are  indifferent  in  themselves,  such  matters  aa 
are  free  from  constitutional  objection  and  have  not  been  the  subject  of 
general  legislation ;  or,  as  it  is  expressed  in  the  charter,  are  not  repugnant  to 
the  constitution  or  laws  of  the  land."  Dubois  v.  Augusta  (health  ordinance), 
Dudley  (Geo.)  Rep.  30,  1831;  Williams  v.  Augusta  (powder  ordinance),  4 
Geo.  R.  509,  514,  1848.  Power  to  pass  necessary  by-laws  is  incidental,  but 
this  power  is  limited  not  only  by  the  terms,  but  the  spirit  and  design,  of  the 
charter,  and  the  general  principles  and  policy  of  the  common  law.  Taylor 
v.  Griswold,  2  Green  (N.  J.)  222,  1834;  Mount  Pleasant  v.  Breeze,  11  Iowa, 
399,  1860,  per  Wright,  J. 

1  State  v.  Morristown,  33  N.  J.  Law,  57,  1868.  Depue,  J.,  in  his 
opinion,  distinguishes  such  a  case  from  Norris  v.  Staps,  Hobart,  210,  where 
the  corporation  was  created  by  the  Crown,  and  where  it  was  held  that  a 
special  clause  in  the  letters  patent  authorizing  the  corporate  body  (a  fellow- 
ship of  weavers)  to  make  by-laws,  did  not  add  to  implied  powers,  and  that 
its  by-laws  were  subject  to  the  general  law  of  the  realm  and  subordinate  to 
it.  "But,"  he  adds,  "  a  special  grant  of  power  to  a  municipal  corporation 
is  an  entirely  different  thing ;  it  is  a  delegation  of  authority  to  legislate  by 
ordinance  on  the  enumerated  subjects,  and  does  add  to  the  powers  incident 
to  the  creation  of  the  corporation.  The  numerous  instances,  in  our  own 
state,  of  the  grant  of  such  powers  in  relation  to  the  opening  and  improve- 
ment of  streets,  the  making  of  sewers,  and  the  assessment  of  ta:ces,  afford 
illustrations  of  this  distinction.''     lb.  62. 


Ch.  XII.]  REQUISITES     OF     ORDINANCES.  36? 

tion  are  derived  from  the  law  and  its  charter,  it  is  evident 
that  no  ordinance  or  by-law  of  a  corporation  can  enlarge^ 
diminish,  or  nary,  its  powers.1  A  similar  rule  obtains  in 
England,  where  it  is  held,  that  neither  the  king's  charter 
nor  any  by-law  can  introduce  an  alteration  in  rules  which 
have  been  prescribed  to  a  corporation  by  an  act  of  parlia- 
ment,' By-laws  are,  in  their  nature,  strictly  local,  and 
mil >ordinate  to  the  general  laws. 

.§  252.  Ordinance  Need  not  Recite  Authority  to  Pass 
it. — It  is  not  essential  to  the  validity  of  an  ordinance  exe- 
cuting powers  conferred  by  the  legislature,  that  it  should 
state  the  power  in  execution  of  which  the  ordinance  is 
passed.  If  it  state  no  particular  power  as  its  basis,  it  will 
be  judicially  regarded  as  emanating  from  that  power  which 
would  have  warranted  its  passage.     If  two  such   powers 

1  Thompson  v.  Carroll,  22  How.  422,  1859;  Andrews  v.  Insurance  Com- 
pany, 37  Maine,  256,  1854;  Thomas  v.  Richmond,  U.  S.  Supreme  Court, 
Dec.  T.,  1871,  12  Wall.  349.  "A  power  vested  by  legislation  in  a  city 
corporation,  to  make  by-laws  for  its  own  government  and  the  regulation  of 
its  own  police,  cannot  be  construed  as  imparting  to  it  the  power  to  repeal 
the  [general]  laws  in  force,  or  to  supersede  their  operation  by  any  of  its 
ordinances.  Such  a  power,  if  not  expressly  conferred,  cannot  arise  by  mere 
implication, 'unless  the  exercise  of  the  power  given  be  inconsistent  with  the 
previous  law,  and  does  necessarily  operate  as  its  repeal  pro  tanto.  Nor  can 
the  presumption  be  indulged,  that  the  legislature  intended  that  an  ordi- 
nance passed  by  the  city  should  be  superior  to,  or  take  the  place  of,  the 
general  law  of  the  state  upon  the  same  subject."  Simpson,  C.  J.,  March  v. 
Commonwealth,  12  B.  Mon.  25,  29,  1851.  "  Huckster  "  means  a  petty  dealer 
or  retailer  of  small  articles  of  provisions,  &c,  and  an  ordinance  cannot  en- 
large the  ordinary  meaning  so  as  to  embrace  "  any  person  not  a  farmer  or 
butcher  who  should  sell,  or  offer  for  sale,  any  commodity  not  of  his  own 
manufacture,"  and  subject  such  person  to  a  penalty;  it  not  being,  saya 
Eanney,  J.,  "part  of  the  franchise  of  municipal  corporations  to  change  the 
meaning  of  English  words."  Mayor  v.  Cincinnati,  1  Ohio  St.  268,  272, 
1853. 

a  Rex  v.  Miller,  6  Term  R.  277;  Rex  v.  Barber  Surgeons,  1  Ld.  Ravm. 
585.  It  has  even  been  said  that  the  general  assembly  cannot  authorize  a 
municipal  corporation  to  repeal,  by  ordinance,  a  statute  of  the  state.  Hay- 
wood v.  Mayor,  &c,  12  Geo.  404,  per  Lumpkin,  J.  But  it  may  provide  that 
on  the  passage  of  an  ordinance  of  a  certain  character,  the  state  law  on  the 
subject  shall  not  be  in  force  in  the  corporate  limits.  State  v.  Binder,  38 
Mo.  450.     Post,  sec.  757. 


363  MUNICIPAL     CORPORATIONS.  TCh.  XTL 

exist,  it  may  be  imputed  to  either,  in  conformity  to  which 
its  provisions  and  pre-requi sites  show  that  it  has  been 
adopted.  If,  in  these  respects,  in  accordance  with  both,  no 
injustice  can  result  in  regarding  it  as  the  offspring  of  both, 
or  either  of  the  powers.1 

§  253.  Must  be  Reasonable  and  Lawful.— In  England, 
the  subjects  upon  which  by-laws  may  be  made  were  not 
usually  specified  in  the  king's  charter,  and  it  became  an 
established  doctrine  of  the  courts  that  every  corporation 
had  the  implied  or  incidental  right  to  pass  by-laws,  but  this 
power  was  accompanied  with  these  limitations,  namely,  thai 
every  by-law  must  be  reasonable,  not  inconsistent  with  the 
charter  of  the  corporation,  nor  with  any  statute  of  parlia- 
ment, nor  with  the  general  principles  of  the  common  law  of 
the  land,  particularly  those  having  relation  to  the  liberty  of 
the  subject  or  the  rights  of  private  property.3  In  this 
country  the  courts  have  often  affirmed  the  general  incidental 
power  of  municipal  corporations  to  make  ordinances,  but 
have  always  declared  that  ordinances  passed  in  virtue  of 
the  implied  power  must  be  reasonable,  consonant  with  the 
general  powers  and  purposes  or  the  corporation,  and  not  in- 
consistent with  the  laws  or  policy  of  the  state.8 

1  Per  Dorsey,  C  J.,  Methodist  P.  Church  v.  Baltimore,  6  Gill  (Bid.)  391, 
1848.  Under  power  to  pass  an  ordinance  if  found  necessary,  the  necessity  for 
its  enactment,  being  implied  from  its  mere  passage,  need  not  be  recited  iD 
the  ordinance,  nor  averred  in  proceedings  to  enforce  it.  Stuyvesant  v. 
Mayor,  &c.  of  New  York,  7  Cow.  588;  S.  P.  Young  v.  St.  Louis,  47  Mo. 
492.  1871.  But  the  charter  may  be  imperative  in  requiring  the  necessity  to 
be  expressed  by  ordinance  or  resolution:  so  held  in  Hoyt  v.  East  Saginaw, 
19  Mich.  39,  1869.  So,  in  England  it  is  not  necessary  that  the  preamble  to 
a  by-law  should  state  the  reasons  for  making  it.  Rex  v.  Harrison,  3  Burr. 
1328.  See,  also,  Grierson  v.  Ontario,  9  Up.  Can.  Q.  B.  623;  Fisher  v. 
Vaughan,  10  Up.  Can.  Q.  B.  492. 

s  Sutton's  Hospital  Case,  10  Rep.  31  a  ;  Feltmakers  v.  Davis,  1  Bos.  &  P. 
98,  100;  Norris  v.  Stops,  Hob.  211;  Rex  v.  Maidstone,  3  Burr.  1837;  Com. 
Dig.  Franch.  F.  10;  London©.  Vanacre,  1  Ld.  Raym.  496;  2  Kyd,  chap. 
IV.  sec.  10,  p.  95,  and  cases  cited;  Bac.  Abr.  tit.  By-Law. 

*  Must  be  Reasonable.  Kip  v.  Patterson,  2  Dutch.  (N.  J.)  298;  Commis- 
sioners v.  Gas  Co.,  12  Pa.  St.  318,  1859;  Fisher  v.  Harrisburg,  2  Grant  (Pa.) 
Cases,  281,  1854;  Commonwealth  r.  Robertson,  5  Cush.  438,  1850;  "Waters 
v.  Leech,   3  Ark.  140;  Mavor  v.  Winfield,  8  Humph.   (Tenn.)  767,  1848; 


£h.  XIL]  REQUISITES     OF     ORDINANCES.  3(jy 

§254.  Must  not  be  Oppressive. — The  principle  of  law, 
that  ordinances  passed  under  the  general  authority  to  enact 
all  such  as  will  be  necessary,  must  be  reasonable,  or  they 
may  be  void,  is  well  illustrated  by  a  case  in  Pennsylvania.1 
A  municipal  corporation  passed  two  ordinances  in  relation 
to  a  gas  company — a  private  corporation,  with  a  special 
charter  authorizing  the  construction  and  maintenance  of 
suitable  gas  works  within  the  limits  of  the  municipal  cor- 
poration, and  the  use  of  the  streets  for  the  laying  down  of 
pipes.  The  first  ordinance  prohibited  the  gas  company 
from  opening  paved  streets  from  December  to  March  in  each 
year,  for  the  purpose  of  laying  gas  mains.  This  ordinance 
the  court  considered  to  be  reasonable,  in  view  of  the  diffi- 
culty of  repairing  the  paved  streets  during  the  winter 
months.  And  the  other  ordinance  prohibited  the  gas  com- 
pany from  opening  a  paved  street  at  any  time,  for  the  pur- 
pose of  laying  pipes  from  the  main  to  the  opposite  side  of 

Commonwealth  v.  Steffee,  7  Bush  (Ky.)  161,  1870;  People  v.  Throop,  18 
Wend.  183,  186,  1834;  Mayor  v.  Beasley,  1  Humph.  232,  1839;  State  v. 
Freeman,  38  N.  H.  426,  1859;  White  v.  Mayor,  &c.,  2  Swan  (Tenn.)  364, 
1852;  Pedrick  v.  Bailey,  12  Gray  (Mass.)  161;  Dunham  v.  Rochester,  5  Cow. 
462;  Clason  v.  Milwaukee,  30  Wis.  316,  1872. 

Must  not  conflict  with  the  charter  or  statute,  or  be  repugnant  to  fundamental 
rights.  Dubois  z.  A;gusta  (health  ordinance),  Dudley  (Geo.)  R.  30,  1831; 
Williams  v.  Augusta  (powder  ordinances),  4  Geo.  509,  1848;  Adams  v. 
Mayor,  &c.  (liquor  statute),  29  Geo.  56;  Taylor  v.  Griswold,  2  Green  (X.  J.) 
222,  1834;  New  Orleans  v.  Philpi  (taxation),  9  La.  An.  44;  Perdue  v.  Ellis 
(liquor  traffic),  18  Geo.  586  ;  Haywood  v.  Mayor,  12  Geo.  404 ;  Paris  v. 
Graham  (tax  on  dram-shops),  33  Mo.  94;  St.  Louis  v.  Cafferata,  24  Mo.  94; 
St.  Louis®.  Benton,  11  Mo.  61 ;  Carr  v.  St.  Louis  (fee  of  officers),  9  Mo  1845; 
Marietta  v.  Fearing  (estray  animals),  4  Ohio,  427,  1831 ;  Collins  v.  natch 
(animals  at  large),  IS  Ohio,  532,  1849;  Mayor,  &c.  of  New  York  v.  Nichols 
(inspection  laws),  4  Hill,  209,  1843 ;  Commonwealth  v.  Turner  (liquor  traf- 
fic), 1  Cush.  493.  1848;  Phillips  v.  Wickam,  1  Paige,  590;  Howard  v.  Savan- 
nah, T.  Charlt.  R.  173;  Smith  v.  Knoxville,  3  Head  (Tenn.)  245,  1859; 
Cowen  v.  West  Troy,  43  Barb.  48,  1864;  Petersfield  v.  Vickers,  3  Coldw. 
(Tenn.)  205 ;  City  Council  v.  Benjamin,  2  Strob.  (South  Car.)  251 ;  City 
Council  v.  Ahrens,  lb.  241 ;  Heisembrittle  Ads.  v.  City  Council,  2  McMul. 
(South  Car.)  233;  City  Council  v.  Goldsmith,  2  Speer  (South  Car.)  435; 
State  v.  Welch,  36  Conn.  215.  An  ordinance  prohibiting  heavy  awnings 
over  sidewalks,  without  consent  of  municipal  authorities,  is  reasonable  and 
valid.     Pedrick  v.  Bailey,  12  Gray,  161. 

1  Commissioners  of  North  Liberties  v.  Gas  Company,  12  Pa.  St.  318,  1849. 
24 


370  MUNICIPAL    CORPORATIONS.  [Ch.  XII. 

the  street.  The  court  sa}^ :  "  The  effect  of  this  ordinance 
is,  to  compel  the  company  to  construct  two  mains,  one  on 
each  side  of  the  street,  instead  of  one,  thereby  materially 
increasing  the  expense  to  the  company,  and  consequently 
enhancing  the  price  of  gas  to  the  inhabitants  of  the  district." 
And  this  ordinance  was  declared  to  be  void. 

§  255.  Courts  will  declare  void  ordinances  that  are  op- 
pressive in  their  character.  Thus,  the  Supreme  Court  of 
Tennessee,  in  a  judgment  which  reflects  credit  upon  the 
tribunal  that  pronounced  it,  declared  void  an  ordinance  of 
the  city  of  Memphis  which  ordered  the  arrest,  imprison- 
ment, and  fine  of  all  free  negroes  who  might  be  found  out 
after  ten  o'  clock  at  night,  within  the  limits  of  the  corpora- 
tion.1 

§  256.  Must  be  Impartial,  Fair,  and  General. — As  it 
would  be  unreasonable  and  unjust  to  make,  under  the  same 
circumstances,  an  act  done  by  one  person  penal,  and  if  done 
by  another  not  so,  ordinances  which  have  this  effect  cannot 
be  sustained.  Special  and  unwarranted  discrimination, 
or  unjust  or  oppressive  interference  in  particular  cases  is 
not  to  be  allowed.  The  powers  vested  in  municipal  cor- 
porations should,  as  far  as  practicable,  be  exercised  by 
ordinances  general  in  their  nature  and  impartial  in  their 
operation.9 

1  Mayor  ®.  Winfield,  8  Humph.  (Tenn.)  767,  1848.  The  oppressiveness 
and  inequality,  alleged  to  invalidate  a  by-law,  must  be  made  apparent  to 
the  court.  Mayor  v.  Beasley,  1  Humph.  (Tenn.)  232,  1839;  St.  Louis  v. 
"Weber,  44  Mo.  547,  1869.  A  by-law  prohibiting  swine  running  at  large  in  a 
city  is  presumptively  reasonable  as  a  sanitary  or  police  regulation.  Com- 
monwealth v.  Patch,  97  Mass.  221 ;  Commonwealth  v.  Bean,  14  Gray,  52. 

2  Russ  v.  Mayor,  &c.  of  New  York,  12  N.  Y.  Leg.  Obs.  38  ;  White  v. 
Mayor,  2  Swan  (Tenn.)  364,  1852;  De  Ben  v.  Girard,  4  La.  An.  30;  Chicago 
v.  Rumpff,  45  111.  90;  Mayor,  &c.  of  Hudson  v.  Thorne,  7  Paige,  261.  Or- 
dinances should  be  general,  or,  at  all  events,  not  discriminating  in  their 
operation.  They  may,  it  is  said,  impose  fines  on  persons  violating  their 
provisions  within  the  corporation  or  within  a  designated  district  therein,  or 
in  a  certain  street;  but  an  ordinance  naming  one  individual  and  directing 
him  to  do  certain  acts  with  respect  to  a  building  alleged  to  be  a  nuisance, 
and  in  default  of  compliance,  imposing  a  fine  of  a  specific  amount  upon 
him,  was  held  to  be  unreasonable,   contrary  to  common  right,  and  void. 


Or.  XIL]  REQUISITES     OF     ORDINANCES.  371 

§  257.  May  regulate,  but  not  Restrain,  Trade. — In 
England,  certain  customs  prevail  in  prescriptive  corpora- 
tions restrictive  of  freedom  of  trade  and  against  common 
right.  Such  customs,  from  long  usage  and  unknown  origin, 
are  regarded  in  the  light  of  regulations  prescribed  by  a 
charter  which  is  supposed  to  have  existed,  but  is  lost. 
Such  customs,  while  not  favored  by  the  English  courts,  are 
yet  held  legal,  but  must  be  incontrovertibly  established. 
But  by  the  Municipal  Corporations  Act  of  1835  (5  &  6  Will. 
IV.  chap.  LXXVI.  sec.  14), *  exclusive  rights  of  trading 
have  been  abolished,  and  it  is  enacted,  "  that  notwithstand- 
ing such  custom  or  by-law  [to  the  contrary],  ever}^  person 
in  any  borough  may  keep  any  shop  for  the  sale  of  all  lawful 
wares  and  merchandise,  by  wholesale  or  retail,  and  use 
every  lawful  trade,  occupation,  mystery,  and  handicraft, 
for  hire,  gain,  sale,  or  otherwise,  within  any  borough." 

.  §  258.  In  this  country  corporations  derive  all  their 
powers  from  legislative  acts  of  comparatively  modern  date, 
and  prescriptive  customs,  in  restraint  of  trade  or  against 
common  right,  are  unknown.  No  inconsiderable  portion  of 
the  cases  in  the  old  books  in  England  relate  to  these  cus- 
toms, their  validity  and  mode  of  proof,  but  they  are,  in  tlio 
main,  inapplicable  to  the  present  period  and  to  the  institu- 
tions in  this  country,  where  freedom  in  the  choice  and  pur- 
suit of  all  occupations  never  has  been  denied.  The  inappli- 
cability of  the  English  decisions  is  noticed  by  Mr.  Justice 
Dewey  in  delivering  the  opinion  of  the  Supreme  Court  of 

Municipality  v.  Blineau,  3  La.  An.  688,  1848.  Compare  Bozant  v.  Campbell, 
9  Rob.  (La.)  411,  1845,  where,  without  repealing  an  ordinance  prohibiting 
private  hospitals,  the  grant  of  permission  to  one  or  more  individuals  to  erect 
such  hospitals,  was  sustained.  And  see,  also,  Commonwealth  v.  Goodrich, 
13  Allen,  545,  where  a  municipal  regulation,  limited  in  its  charter,  was  con- 
sidered valid.  In  exercising  its  power  to  require  adjacent  lot  owners  to 
make  local  improvements,  the  corporation,  it  has  been  held  in  Tennessee, 
must  not  act  in  a  partial  and  oppressive  manner;  therefore  it  cannot  select 
particular  individuals  by  name,  and  require  them  to  construct  pavements  or 
local  improvements  in  front  of  their  lots,  and  omit  others  in  the  same  im- 
provement district,  if  this  be  done  without  good  cause  or  reason  for  the 
distinction.  White  v.  Mayor,  &c,  2  Swan  (Tenn.)  364,  1852.  Post,  sec. 
638. 

1  Ante,  chap.  III.  sec    16  and  note. 


372  MUNICIPAL    CORPORATIONS.  [Ch.  XIL 

Massachusetts  in  an  important  case  involving  the  validity 
of  an  ordinance  of  the  city  of  Boston  regulating  the  use  of 
hackney  coaches  and  other  vehicles  within  the  city.  He 
observes,  that  "in  the  arguments  addressed  to  the  court, 
the  question  was  somewhat  discussed  as  to  the  power 
incident  to  municipal  corporations  to  create  by-laws  of  the 
character  here  adopted ;  and  a  reference  was  made  to 
various  cases  in  the  English  courts,  where  questions  of  this 
nature  had  arisen.  Upon  examination  of  those  cases,  they 
will  be  found  less  important  and  less  satisfactory  as  guides 
here,  inasmuch  as  it  is  quite  obvious  that  in  many  of  them, 
and  particularly  those  where  the  ordinance  seemed  most 
questionable  as  not  being  within  the  ordinary  exercise  of 
municipal  authority,  the  by-laws  were  sustained  upon  the 
ground  of  ancient  and  long-continued  usage,  ripening  into 
a  prescriptive  right  on  the  part  of  the  municipal  corpora- 
tion." But  "no  such  ground,"  he  adds,  "can  be  urged 
here,  and  the  present  ordinance,  if  sustained  at  all,  must  be 
shown  to  be  authorized  by  the  express  provision  of  the 
charter,  or  be  derived  as  an  incidental  power  resulting  from 
its  incorporation  as  a  city,  or  be  found  in  some  general  or 
special  statute."1 

1  Commonwealth  v.  Stodder,  2  Cush.  562,  568,  1848.  See  as  to  English 
decisions,  remarks  of  Rhodes,  J.,  in  Herzo  v.  San  Francisco,  83  Cal.  134, 145, 
1867.  In  the  case  first  cited  the  court  decided  that  the  business  of  carrying 
persons  for  hire  from  town  to  town,  in  stage  coaches  and  omnibuses,  is  not 
so  far  a  territorial  or  local  occupation  as  will  authorize  one  city,  unless  it 
has  express  and  direct  authority  so  to  do  from  the  legislature,  to  pass  an 
ordinance  requiring  the  inhabitants  of  other  towns  to  obtain  from  it  a 
license  before  exercising  that  employment  in  carrying  persons  to  or  from 
it.  Such  an  ordinance  was  considered  to  be  an  unnecessary  restraint  upon 
business,  and  is  not  binding  upon  citizens  of  other  places.  The  court  does 
not  question  the  right  of  the  city,  by  reasonable  by-laws,  to  require  inhabi- 
tants, whose  business  is  local  and  carried  on  within  the  city,  to  obtain  a  li- 
cense before  exercising  certain  employments.  Per  Dewey,  J.,  2  Cush.  562, 
575;  see  also  Napman  v.  People,  19  Mich.  352,  1869;  Barling  v.  West,  29 
Wis.  307 ;  Hayes  v.  Appleton,  24  Wis.  542. 

Whenever  a  by-law  seeks  to  alter  a  well  settled  and  fundamental  principle 
of  the  common  law,  or  to  establish  a  rule  interfering  with  the  rights  of  indi- 
viduals or  the  public,  the  power  to  do  so  must  come  from  plain  and  direct 
legislative  enactment.  Taylor  v.  Griswold,  2  Green  (N.  J.)  222,  1834.  Ante, 
Bee.  55,  and  note. 


Dn.  XII.]  REQUISITES     OF     ORDINANCES.  373 

§  259.  Must  not  Contravene  Common  Right.  -  An 
ordinance  cannot  legally  be  made  which  contravenes  a 
common  right,  unless  the  power  to  do  so  be  plainly  con- 
ferred by  legislative  grant ;  and  in  cases  relating  to  such  a 
right,  authority  to  regulate  conferred  upon  towns  of  limited 
powers,  has  been  held  not  necessarily  to  include  the  powei 
to  prohibit.1  Thus,  in  Connecticut,  it  is  held  that  every 
one  has,  presumptively,  a  common  law  right  to  fish  in 
navigable  rivers,  and  that  though  every  town  may,  by 
statute,  have  the  power  to  make  by-laws  to  regulate  fish- 
eries of  clams  and  oysters  within  its  limits,  yet  this  power 
does  not  authorize  a  by-law  prohibiting  all  persons,  except 
its  own  inhabitants,  from  taking  shell-fish  in  a  navigable 
river,  within  the  limits  of  such  town  ;  such  a  by-law,  being 
in  contravention  of  a  common  right,  is  void.3 

§  260.  But  there  is,  however,  no  common  right  to  do 
that  which,  by  a  valid  law  or  ordinance,  is  prohibited  ;  and 
hence  courts  will  not  declare  an  authorized  ordinance  void 
because  it  prohibits  what  otherwise  might  lawfully  be  done. 
In  discussing  the  subject,  Mr.  Justice  Evans  illustrates  it 
in  this  wise  :  "If  there  was  no  law  interfering,  the  butcher 
might  kill  his  beeves  and  hogs  in  the  street.  If  the  butcher 
could  do  it  any  man  might,  and  it  might,  therefore,  be  said 
to  be  a  common  right ;  but  when  the  law  prohibited  it,  it 
was  no  longer  a  common  right.  A  legal  restraint  may  be 
imposed  on  a  few  for  the  benefit  of  the  many."1 

§  261.  Validity  is  for  the  Court,  and  not  the  Jury,  to 
Determine. — Whether  an  ordinance  be  reasonable  and  con- 
sistent with  the  law  or  not,  is  a  question  for  the  court,  and 
not  the  jury,  and  evidence  to  the  latter  on  this  subject  is 
inadmissible.  But  in  determining  this  question  the  court 
will  have  to  regard  all  the  circumstances  of  the  particular 

1  Taylor  v.  Griswold,  2  Green  (N.  J.)  222,  1834. 

*  Hayden  v.  Noyes,  5  Conn.  391,  1824;  Peck  v.  Lockwood,  5  Day  (Conn. 
22;  Willard  v.  Killingworth,    8  Conn.   247;  Clason  v.  Milwaukee.  30  Wis. 
316.     Ante,  sec.  55. 

*  Per  Evans,  J.,  in  City  Councils.  Ahrens,  4  Strob.  (South Car.)  Law,  241, 
257,  1850;  City  Council  v.  Baptist  Church,  lb.  306,  310;  Peoria  v.  Calhoun, 
29  111.  317,  1862;  St.  Paul  v.  Coulter,  12  Minn.  41,  1866. 


374 


MUNICIPAL     CORPORATIONS.  [Ch.  XII 


city  or  corporation,  the  objects  sought  to  be  attained,  and 
the  necessity  which  exists  for  the  ordinance.  Regulations 
proper  for  a'large  and  prosperous  city  might  be  absurd  or 
oppressive  in  a  small  and  sparsely  populated  town,  or  in 
the  country.     An  unreasonable  by-law  is  void.1 

§  262.  Legislative  Authority  to  Adopt  Unreasonable 
Ordinances.— Where  the  legislature,  in  terms,  confers  upon 
a  municipal  corporation  the  power  to  pass  ordinances  of  a 
specified  and  defined  character,  if  the  power  thus  delegated 
be  not  in  conflict  with  the  constitution,  an  ordinance  passed 

1  Bacon  Abr.  tit.  By-Law ;  Commonwealth  v.  Worcester,  3  Pick.  462, 
1862;  Paxsone.  Sweet,  1  Green  (N.J.)  196,  1832;  Vandine,  Petitioner,  &c, 
6  Pick.  187,  1828;  Boston®.  Shaw,  1  Met.  130,  135,  1840;  Austin  v.  Murray. 
16  Pick.  121,  125,  1834;  Hudson  v.  Thorne,  7  Paige,  261;  Commonwealth 
v.  Stockier,  2  Cush.  562,  575,  1848;  Commonwealth  v.  Gas  Company,  12  Pa. 
St.  318.  Dunham*.  Rochester,  5  Cow.  462,  465.  1826;  Buffalo  v.  Webster, 
10  Wend.  100. 

"Where  the  municipal  legislature  has  authority  to  act,  it  must  be  gov- 
erned, not  by  our  discretion,  but  by  its  own ;  and  we  shall  not  be  hasty  in 
convicting  them  of  being  unreasonable  in  the  exercise  of  it."  Per  Laurie, 
J.,  Fisher"  e.  Harrisburg,"  2  Grant  (Pa.)  Cas.  291,  1854.  S.  P.  St.  Louis  t. 
Weber,  44  Mo.  547.  "The  courts,"  says  Dewey,  J.,  "doubtless  have  the 
power  to  deny  effect  to  a  by-law  obnoxious  to  the  objection  that  it  is  un- 
reasonable. It  is,  however,  a  power  to  be  cautiously  exercised,"  especially 
where  the  question  is  a  practical  one— for  example,  the  length  of  time 
which  ought  to  be  allowed  to  vehicles  to  remain  in  the  street,  and  as  to 
which  the  city  authorities,  it  is  to  be  presumed,  can  judge  better  than  the 
court.  Commonwealth  v.  Robertson,  5  Cush.  438,  442,  1850.  See,  also,  Vint- 
ners v.  Passey,  1  Burr.  239;  Workingham  v.  Johnson,  Cas.  Temp.  Hardw. 
285;  Poulter's  Co.  v.  Phillips,  6  Bing.  (N.  C.)  314;  St.  Paul  v.  Coulter.  12 
Miun.  41;  Commonwealth  v.  Patch,  97  Mass.  221. 

The  doctrine  of  the  text  that  the  validity  of  a  by-law  is  in  all  cases  a 
question  for  the  court  and  that  evidence  to  the  jury  is  inadmissible,  has 
been  denied  by  the  Supreme  Court  of  Wisconsin  which,  in  Clason  v.  Mil- 
waukee, 30  Wis.  316,  1872  (involving  the  validity  of  an  ordinance  to  pro- 
tect the  harbor,  and  also  the  city,  from  inundation  by  preserving  the  shore 
or  beach),  considered  it  to  be  no  violation  of  principle,  in  a  case  where  the 
reasonableness  of  the  ordinance  depended  upon  extrinsic  facts,  to  submit 
testimony  to  the  jury  bearing  upon  the  reasonableness  of  the  requirements 
of  the  ordinance.  But  the  argument  of  the  counsel  for  the  city  that  this 
view  makes  the  same  by-law  "  valid  in  one  case  and  invalid  in  another,  ac- 
cording to  the  varying  weight  of  testimony  and  the  varying  views  of  juries" 
seems  unanswerable,  and  the  text  states  probably  the  true  doctrine.  See 
Glover  on  Corp.  297,  and  cases  in  this  note. 


ch.  xilj  requisites   of   ordinances.  375 

pursuant  thereto  cannot  be  impeached  as  invalid  because  it 
would  have  been  regarded  as  unreasonable  if  it  had  been 
passed  under  the  incidental  power  of  the  corporation,  or 
under  a  grant  of  power  general  in  its  nature.  In  other 
words,  what  the  legislature  distinctly  says  may  be  done 
cannot  be  set  aside  by  the  courts  because  they  may  deem  it 
unreasonable.  But  where  the  power  to  legislate  on  a  given 
subject  is  conferred,  but  the  mode  of  its  exercise  is  not 
prescribed,  then  the  ordinance  passed  in  pursuance  thereof 
must  be  a  reasonable  exercise  of  the  power,  or  it  will  be 
pronounced  invalid.1 

§  263.  Must  be  Consistent  with  Public  Legislative 
Policy. — The  rule  that  a  municipal  corporation  can  pass  no 
ordinance  which  conflicts  with  its  charter  or  any  general 
statute  in  force  and  applicable  to  the  corporation  has  been 
before  stated.  Not  only  so,  but  it  cannot,  in  virtue  of  its 
incidental  power  to  pass  by-laws,  or  under  any  general 
grant  of  that  authority,  adopt  by-laws  which  infringe  the 
spirit  or  are  repugnant  to  the  policy  of  the  state  as  declared 
in  its  general  legislation.  This  principle  is  well  exemplified 
by  a  case  in  Ohio,2  in  which  incorporated  towns  were,  by 
statute,  prohibited  from  subjecting  stray  animals  owned  by 
persons  not  residents  of  such  towns  to  their  corporation 
ordinances.  It  was  held  that  an  ordinance  operating,  not 
on  the  animals  but  on  the  non-resident  owner,  in  the  shape 
of  a  penalty,  violated  the  spirit  of  the  statute,  and  was  void. 
So,  in  a  later  case  in  the  same  state,  it  was  shown  that  the 
general  policy  of  the  state  was  to  allow  animals  to  run  at 
large ;  and  it  was  ruled  that  a  municipal  corporation  with 
power  to  pass  "  all  by-laws  deemed  necessary  for  the  well 
regulation,  health,  cleanliness,  &c,"  of  the  borough,  and 
with  power  to  "abate  nuisances,"  had  no  authority  to  pass 
a  by-law  restraining  cattle  from  running  at  large,  such  a  by- 
law being  in  contravention  of  the  general  law  of  the  state.' 

1  Peoria  ft  Calhoun,  29  111.  317,  1862;  St.  Paulo.  Coulter,  12  Minn.  41, 
1866. 

8  Marietta  v.  Fearing,  3  Ohio,  427,  1831. 

3  Collins  v.  Hatch,  18  Ohio,  423,  1849.  But  in  niinois  it  has  been  de- 
cided that  a  town,  authorized  by  its  charter  to  declare  what  should  be 
nuisances,  and  to  provide  for  the  abatement  thereof  by  ordinance,  may 


376  MUNICIPAL     CORPORATIONS.  [Ch-  ~^^ 

§  264.  The  general  statutes  of  the  state  abolished  the 
system  of  inspecting  hay,  and,  in  the  place  of  it,  the  seller 
was  required  to  prepare  the  article  for  market  in  a  particu- 
lar manner  at  the  peril  of  being  subjected  to  certain  desig- 
nated penalties.  In  other  words,  he  was  at  liberty  to  dis- 
pose of  his  hay  without  inspection  if  lie  chose  to  do  so. 
Under  these  circumstance,  it  was  decided  that  a  city  ordi- 
nance prohibiting  the  sale  of  pressed  hay  without  inspection 
was  void,  because  it  conflicted  with  the  laws  of  the  state 
upon  the  same  subject.1 

Of  the   Signing,  Publication,    and  Recording  of  Ordi- 
nances. 

§  265.  Signing,  Publication,  and  Recording. — When 
ordinances  are  required  to  be  published  before  they  shall  go 
into  effect,  this  requirement  is  essential,  and  the  publication 
must  be  in  the  designated  mode.  Until  such  publication  be 
made,  or  until  they  have  gone  into  operation,  no  penalty 

pass  an  ordinance  declaring  swine  running  at  large  within  the  corporation 
to  be  nuisances,  and  providing  for  the  taking  up  of  the  same,  &c,  and  this 
though  under  the  laws  of  the  state  the  owners  of  stock  may  lawfully  allow 
it  to  run  at  large  upon  the  common— the  court  regarding  the  power  named 
in  the  charter  as  abridging  or  limiting  any  right  of  common  which  might 
otherwise  exist.  Roberts  v.  Ogle,  30  111.  459,  1863.  By-laws  which  contra- 
vene the  policy  of  the  general  statutes  of  the  state,  by  undertaking  to  pun- 
ish acts  which  those  statutes  authorize,  are  void.  Canton  v.  Nist,  9  Ohio 
St.  439,  holding  void  a  by-law,  which,  disregarding  the  statutory  excep- 
tions of  cases  of  necessity,  charity,  &c,  prohibited  the  opening  of  shops  for 
business  on  Sunday.  Followed,  Thompson  v.  Mount  Vernon,  11  lb.  688, 
adjudging  an  ordinance  to  be  invalid  because  inconsistent  with  the  liquor 
law  of  the  state.  And  see  Adams  v.  Mayor,  &c.,  29  Geo.  56;  Sill  v.  Corn- 
ing, 1  E.  P.  Smith  (N.  Y.)  297;  Cincinnati  v.  Gynne,  10  Ohio,  290;  Wood 
p.  Brooklyn,  14  Barb.  425;  Markle  v.  Akron,  14  Ohio,  586;  Thomas  v. 
Richmond,  U.  S.  Sup.  Ct,  Dec.  Term,  1870,  12  Wall.  349.  But  a  corpora- 
tion may,  in  some  cases,  consistently  with  general  law,  further  regulate  by 
ordinance  subjects  already  regulated  by  statute.  Huddleson  v.  Ruffin,  6 
Ohio  St.  604 ;  Rogers  v.  Jones,  1  Wend.  237 ;  State  v.  Welch,  36  Conn.  215t 
1869. 

1  Mayor,  &c,  of  New  York  v.  Nicholls,  4  Hill  (N.  Y.)  209,  1843.  Com- 
pare, Mayor  v.  Hyatt,  3  E.  D.  Smith,  156;  Rogers  v.  Jones,  1  Wend.  287. 
Construction  of  power  to  appoint  weighmasters.  Hoffman  v.  Jersey  Cityr 
34  N.  J.  Law,  172,  1870. 


Ch.  XII.]  SIGNING,     &c.     OF     ORDINANCES.  377 

"-an  be  enforced  under  tliem.1  Whether  the  mayor  s  signa- 
ture is  essential  to  the  validity  of  an  ordinance  depends 
upon  the  charter,  but  unless  made  essential,  such  provisions, 
where  the  ordinance  is  duly  enacted,  have  sometimes  been 
regarded  as  directory.2 

§  266.  Where  alternate  modes  of  publication  of  a  by 
law  are  allowed  by  statute,  and  the  statute  requires  the  cor- 
poration to  direct  which  mode  shall  be  adopted,  a  publica- 
tion made  by  order  of  the  clerk,  without  direction  from,  or 
selection  of,  the  mode  having  been  made  by  the  corporation, 
is  not  valid.3 

§  267.     A  municipal  charter  required  every  ordinance  to 

1  Barnett  v.  Newark,  28  III.  62,  1862;  Conboy  v.  Iowa  City,  2  Iowa,  90, 
1855;  Higley  v.  Bunce,  10  Conn.  567,  1835.  Failure  to  publish  ordinance 
held  not  to  affect  validity  of  bonds  issued  under  a  subsequent  act  authorizing 
the  corporation  to  incur  a  debt.  Amey  v.  Allegheny  City,  24  How.  364; 
Clark  *>.  Janesville,  10  Wis.  136,  1859;  State  v.  Newark,  1  Vroom  (N.  J.) 
303;  People  v  San  Francisco,  27  Cal.  655. 

'  Blanchard  v.  Bissell.  11  Ohio  St.  96,  101,  103,  1860;  Strikers.  Kelly 
7  Hill,  9;  Elmendorf  v.  Mayor  of  New  York,  25  Wend.  693.  See,  however 
Conboy  v.  Iowa  City,  supra;  State  v.  Newark,  1  Dutch.  399 ;  State  v.  Hud 
son,  5  Dutch.  475;  Kepner  v.  Commonwealth,  40  Pa.  St.  124;  State  v. 
Jersey  City,  1  Vr^om,  93;  Creighton  v.  Manson,  27  Cal.  613;  Taylor  0. 
Palmer,  31  Cal.  241;  Dey  v.  Jersey  City,  19  N.  J.  Eq.  412;  Gas  Company  v. 
San  Francisco,  6  Cal.  190.  See  ante,  chapter  on  Corporate  Meetings,  sec. 
231.  Signing  minutes  not  equivalent  to  signing  resolution,  when  latter  is 
essential.  Graham  v.  Carondelet,  33  Mo.  262,  .1862.  When  to  be  signed. 
Miles  v.  Bough,  3  Gale  &  D.  119;  Inglis  v.  Railway  Company,  16  Eng.  Law 
&  Eq.  55.  A  legislative  provision  requiring  the  preskling  officer  of  the 
council  to  sign  all  ordinances,  is  directory  in  its  nature.  If  regularly 
passed,  an  ordinance  is  valid,  though  not  thus  authenticated.  It  is,  of 
course,  competent  for  the  legislature  to  make  the  signature  an  essential 
condition  of  validity.  Blanchard  v.  Bissell,  11  Ohio  St.  96,  101,  103,  1860; 
Fisher  v.  Graham,  1  Cin.  (O.)  113,  1870.  Ante,  sec.  231.  See  State  v. 
Newark,  1  Dutch.  (N.  J.)  399.     Ante,  sec.  209,  note. 

3  Higby  v.  Bunce  (restraining  cattle;  10  Conn.  435;  S.  C,  lb.  567,  1835. 
The  language  of  the  statute  was  this:  "  Such  by-laws  shall  not  be  in  force 
until  published  four  weeks  in  a  newspaper  printed  in  such  town,  or  in  the 
town  nearest  to  such  town  in  which  a  newspaper  is  printed,  or  in  some 
other  newspaper  generally  circulated  in  the  town  where  such  by-law  is 
made,  as  the  town  shall  direct."  Rev.  1821,  p.  458.  Held,  that  the  town 
must  point  out  one  of  the  three  descriptions  of  newspapers  in  which  the 
by-law  should  be  printed.     lb. 


378  MUNICIPAL    CORPORATIONS.  [Ch.  Xn. 

be  published  for  the  space  of  twenty  days  in  at  least  one 
newspaper  before  it  should  go  into  effect ;  and  it  was  held 
that  an  ordinance  would  go  into  force  in  twenty  days  after 
its  publication  in  the  first  number  of  the  paper  ;  that  twenty 
days  need  not  intervene  between  the  first  and  last  insertions  ; 
that  it  is  clearly  sufficient  if  it  be  published  in  each  number 
of  the  paper  issued  within  the  twenty  days,  and  probably 
sufficient  if  there  is  bnt  one  insertion,  twenty  days  after 
which  the  ordinance  will  go  into  effect.1 

§  268.  A  charter  provided  that  no  ordinance  should  be 
in  force  until  published  in  some  newspaper  of  the  place,  and 
also  declared  that  ordinances  should  be  sufficiently  proved 
in  any  court  (among  other  modes)  by  a  printed  copy  taken 
from  the  newspaper  or  printed  pamphlet  in  which  the  same 
had  been  published,  provided  the  same  purports  to  have 
been  done  by  authority  of  the  corporation.  Under  this  pro- 
vision, the  production  of  a  newspaper  published  in  the 
town,  containing  what  appears  as  an  ordinance,  with  a 
caption,  "Published  by  Authority,"  duly  signed,  is  evi- 
dence of  the  existence  and  adoption  of  the  ordinance.2 

§  269.  A  provision  in  a  statute  changing  an  incorporated 
town  into  a  city,  that  the  existing  town  ordinances  shall  re- 
main in  force  provided  they  shall  be  recorded  within  four 
months  thereafter,  is  merely  directory,  and  such  ordinances 
are  valid  though  not  recorded  within  the  designated  period.' 
Xor  is  it  a  valid  objection  to  a  municipal  ordinance  that  it 
is  recorded  in  print  (being  printed  and  pasted  in  the  projDer 
book),  and  not  in  manuscript.4 

1  Hoboken  v.  Gear,  3  Dutch.  (N.  J.)  165,  1859.  Where  a  city  is  required 
to  promulgate  its  ordinauces,  it  is  sufficient  to  publish  them  in  the  news- 
paper in  which  the  ordinances  are  usually  published,  though  there  may  be 
other  newspapers  within  the  city.  Truchelut  v.  City  Council,  1  Nott  &McC. 
(South  Car.)  227,  1818. 

2  Block  v.  Jacksonville,  36  111.  301,  1865.  See  Pendegast  v.  Peru,  20 
111.  51.  Proof  of  publication  under  special  charter  provision.  President, 
<fcc.  v.  O'Malley,  18  111.  407. 

3  Trustees  of  Academy  v.  Erie,  31  Pa.  St.  515,  1858.  Amey  v.  Allegheny 
City,  24  How.  364.  See  Chapter  on  Corporate  Records  and  Documents, 
<inte. 

4  Ewbanks  v.  Ashley,  36  111.  177,  1864.     Parol  evidence  of  resolutions  is 


*h.  XII.]  POWER    TO     IMPOSE     FINES,     &c.  379 


Of  the  Power  to  Impose  Fines,  Penalties,  and 
Forfeitures. 

%  270.  Common  Laio  Principles  Adopted. — That  by- 
laws or  ordinances  may  not  be  inoperative  or  useless,  it  is 
necessary  that  some  penalty  should  be  annexed  to  the 
breach  of  them  ;  and  it  is  settled  in  England,  in  accordance 
with  the  principles  of  Magna  Charta,  that  without  the  ex- 
press sanction  of  parliament  no  by-law  can  be  enforced  by 
disfranchisement  of  the  offender,  or  by  his  imprisonment,  or 
by  forfeiture  of  his  goods  or  property.  Under  incidental 
power  to  pass  by-laws,  a  corporation  may,  in  England,  an- 
nex pecuniary  penalties  of  a  certain  fixed  and  reasonable 
character,  bat  without  express  authority  given  by  a  statute, 
the  only  penalty  it  can  prescribe  is  a  pecuniary  one,  usually 
called  a  fine.  Therefore,  in  the  absence  of  a  statute  or 
special  custom  justifying  it,  a  by-law  cannot  give  a  power 
of  distress  and  sale  of  the  goods  of  the  offender,  since  such 
a  power  is  contrary  to  the  common  law.  And  where  a  cor- 
poration is  empowered  to  enforce  its  by-laws,  in  a  special 
manner,  as  by  fine,  it  is  limited  to  the  manner  prescribed. 
These  safe,  salutary,  and  enlightened  principles  of  law  have 
been  recognized  by  the  American  courts  as  applicable  to  the 
ordinances  of  our  municipal  corporations,  as  the  cases  to 
which  reference  will  be  made  fully  show. 

§  271.  By  the  Municipal  Corporations  Act,  the  subject 
of  by-laws  and  their  penalties  is  regulated.  It  is  declared, 
"  that  it  shall  be  lawful  for  the  council  of  any  borough  to 
make  such  by-laws  as  shall  to  them  seem  meet  for  the 
good  rule  and  government  of  the  borough,  and  for  the  pre- 
vention and  suppression  of  all  such  nuisances  as  are  not 
already  punishable  in  a  summary  manner  by  virtue  of  an 
act  in  force  throughout  such  borough,  and  to  appoint,  by 
such  by-laws,  such  fines  as  they  shall  deem  necessary  for 
the  prevention  and  suppression  of  such  offences  ;  provided 

competent  where  the  charter  does  not  require  them  to  be  recorded,  and 
no  record  thereof  has  been  made.  Darlington  v.  Commonwealth,  41  Pa. 
St.  68.     See  ante,  sec.  247. 


380  MUNICIPAL     CORPORATIONS.  [Ch.  XII. 

that  no  fine,  to  be  so  appointed,  shall  exceed  the  sum  of 
five  pounds,  and  that  no  such  by-law  shall  be  made,  unless 
at  least  two-thirds  of  the  whole  number  of  the  council  shall 
be  present."1     Respecting  the  fines  mentioned  in  this  sec- 
tion,   Mr.  Rawlinson  suggests  the  inquiry  whether  it  be 
necessary  or  not  that  the  exact  amount  of  each  fine  should 
be  mentioned  in  the  by-law,  the  limit,  to  wit,  51.,  being  fixed 
by  the  act,     It  is  contended,  he  observes,  by  some  persons, 
that  the  amount  may  be  left  open,  and  that  a  by-law  enact- 
ing that  the  offence  shall  be  punishable  by  a  fine  not  less 
than  105.  and  not  exceeding  51.  would  be  valid.     This  would 
be  convenient,  but  some  have  doubted  whether  the  corpora- 
tion could  enforce  it  by  the  usual  common  law  remedies, 
viz :   by  an  act  of  debt  or  assumpsit.     It  is  believed,   he 
adds,  that  by-laws  have  invariably  fixed  the  exact  sum  , 
but,   nevertheless,   it  would  seem  that  a  fine  of  51.,  with 
power  to  the  mayor  or  other  officer  to  reduce  it  to  any  sum 
not  exceeding  a  specified  amount,  would  be  good.2    In  this 
country,  the  practice,  if  not  general,  is  at  least  not  uncom- 
mon, to  prescribe  limits  to  fines,  and  allow  them  to  be  im- 
posed within  those  limits,  at  the  discretion  of  the  magistrate 
or  court  intrusted  with  jurisdiction  to  hear  complaints  for 
breaches  of  municipal  ordinances. 

§  272.  Implied  Power  to  Annex  Pecuniary  Penalties. — 
Since  an  ordinance  or  by-law  without  a  penalty  would  be 
nugatory,3  municipal  corporations  have  an  implied  power  to 
provide  for  their  enforcement  by  reasonable  and  proper 
fines  against  those  who  break  them.4     So  the  right  to  make 

1  5  &  6  "Will.  IV.  chap.  LXXYI.  sec.  90.     Ante,  sec.  16,  and  note. 
8  Rawlinson  on  Corp.  (5th  ed.)  165,  166,  note.     Infra,  sec.  275. 

3  State  v.  Cleveland,  3  Rh.  Is.  117.  But  no  penalty  can  be  enforced  for 
an  illegal  exaction.  Mayor  v.  Avenue  Railroad  Company,  33  N.  Y.  42;  32 
lb.  261.  "  Municipal  fine,"  as  used  in  the  constitution  of  California,  mean9 
a  fine  imposed  by  local  laws  of  particular  places,  such  as  incorporated 
towns  and  cities,  and  not  a  fine  imposed  by  the  general  laws  of  the  State. 
People  v.  Johnson,  30  Cal.  98,  1866. 

4  Fisher  v.  Harrisburg,  3  Grant  (Pa.)  Cas.  291,  1854;  Barter  v.  Common- 
wealth, 3  Pa.  (Pen.  &  W.)  253 ;  Trigally  v.  Memphis,  6  Coldw.  (Tenn.)  382, 
1869.  The  amount  must  be  reasonable.  Zylstraa.  Charleston,  1  Bay  (South 
Car.)  382.  The  penalty,  says  Mr.  Willcock,  must  be  imposed  on  the  person 
who  violates  the  by-law.     Thus,  if  goods  be  sold  by  an  unauthorized  per 


Ch.  XII. J  POWER    TO    IMPOSE     FIXES,     &c.  381 

by-laws  gives  to  the  corporation,  without  any  express  grant 
of  power,  the  incidental  right  to  enforce  them  by  reasonable 
pecuniary  penalties.  What  is  reasonable  depends  upon  the 
nature  of  the  offence  and  the  circumstances.1 

§  273.  Charter  Mode  Governs. — Where  the  charter  or 
organic  act  prescribes  the  manner  in  which  by-laws  are  to 
be  enforced,  or  the  sanctions  or  punishments  to  be  annexed 
to  their  violation,  this  constructively  operates  to  negative 
the  right  of  the  corporation  to  proceed  in  any  other  manner, 
or  to  inflict  any  other  punishment.  Thus,  in  the  leading 
case2  on  this  subject,  the  charter  prescribed  in  what  manner 

son  within  the  city,  the  penalty  must  be  imposed  on  the  seller,  and  not  on 
the  buyer,  for  how  can  he  distinguish  between  those  authorized  to  sell  aud 
those  who  are  not.  Willc.  on  Corp.  154,  pi.  369,  370;  Cadden  v.  Estwick, 
1  Salk.  143,  192;  S.  C,  G  Mod.  124;  and  see,  also,  Fazakerley  v.  Wiltshire, 
1  Stra.  469.  The  rule  stated  above,  as  to  the  person  on  whom  penalties 
must  be  imposed,  may  be  extended  or  enlarged  by  express  provisions  of  the 
organic  act  of  the  corporation. 

1  Mayor,  &c.  of  Mobile  v.  Yuille,  3  Ala.  137,  1841.  A  penalty,  although 
small,  fixed  on  every  stroke  of  the  hammer  which  an  unauthorized  per- 
son uses  in  his  trade  of  a  goldsmith,  is  unreasonable,  Willc.  154,  pi.  368. 
Same  principle,  Mayor,  &c.  of  Xew  York  v.  Ordrenan,  12  Johus.  122,1815. 

a  Kirk  v.  Xowill,  1  Term  R.  118,124,  1786,  per  Mansfield  and  Butte?- ;  fol- 
lowed in  Hart  v.  Mayor,  &c,  9  Wend.  571,  588,  606,  1832;  Cotter  v.  Doty,  5 
Ohio,  394, 1832;  Heise  v.  Town  Council,  6  Rich.  (South  Car.)  Law,  404,  1853; 
Miles  v.  Chamberlain,'  17  Wis.  446,  1863.  In  Hart  v.  Mayor,  supra,  it  was  ac- 
cordingly decided  that  a  corporation  having  authority  "to  inflict  penalties 
for  the  violation  of  any  by-law,  not  exceeding  $25  for  any  one  offence," 
could  not  pass  a  by-law  subjecting  property  to  seizure  and  sale,  OT/orjdHi.g 
it,  even  though  it  was  used  contrary  to  the  by-law  which  was  in  other 
respects  valid,  the  remedy  for  enforcing  their  by-laws  having  beenspecilied. 
9  Wend.  571.     Infra,  sec.  282;  sec.  656. 

Where  specific  modes  of  procedure  and  penalties  are  prescribed  against 
persons  failing  to  take  out  license  for  keeping  drinking  houses,  as  fines, 
suits,  and  prosecutions,  a  municipal  corporation,  in  the  absence  of  express 
grant,  has  no  right  to  close  the  doors  of  a  driuking  house  summarih/,  lie- 
cause  the  keeper  has  failed  to  take  out  a  license.  Bolte  v.  New  Orleans,  10 
La.  An.  321,  1855.  That  a  municipal  corporation  cannot  annex  others  or 
greater  penalties  than  those  authorized  in  its  organic  act;  that  power  to  pun- 
ish by  "fine"  is  exclusive,  and  that  it  is  not  competent  to  order  a  forfeiture 
in  addition,  see  Schroder  v.  City  Council,  2  Const.  Rep.  (South  Car.)  726; 
S.  C,  3  Brev.  533,  1815;  McMullen  v.  City  Council,  1  Bay  (South  Car. 
Zylstra  v.  Charleston,  lb.  382;  New  Orleans  v.  Costello,  14  La.  An.  37;  Co- 
lumbia v.  Hunt,  5  Rich.   550,    558;  Kennedy  v.  Sowden,  1  McMul.  (SoutL 


382  MUNICIPAL    CORPORATIONS.  [Ch.  XII. 

by-laws  should  be  enforced,  namely,  by  fine  and  amercia- 
ment, or  either,  and  it  was  decided  that  the  corporation  was 
precluded  from  declaring  a  forfeiture  of  property,  or  from 
inflicting  any  other  punishment,  and  the  doctrine  of  this 
case  has  been  everywhere  followed  in  the  courts  of  this 
country. 

§  274.  A  charter  of  a  city  specifically  enumerated  vari- 
ous powers  which  the  council  was  expressly  authorized  to 
enforce  by  a  penalty  not  exceeding  one  hundred  dollars  for 
their  violation  ;  and  the  same  charter  empowered  the  coun- 
cil to  prevent  and  remove  encroachments  upon  the  streets, 
but  was  silent  as  to  the  imposition  of  penalties  for  a  viola- 
tion of  its  provisions.  The  council  passed  an  ordinance 
imposing  a  continuing  penalty  of  ten  dollars  a  day  for 
every  day's  failure  to  remove  an  encroachment,  after  notice  ; 
and  it  was  held,  and  properly  so,  that  it  possessed  no  power 
to  impose  such  a  penalty,  but  the  decision  was  put  upon  the 
ground  that  the  specific  enumeration  of  the  powers  which 
might  be  rendered  effectual  by  penal  provisions  was  an  im- 
plied exclusion  of  the  right  to  impose  any  penalties  what- 
ever in  other  cases.1 

§  275.  Penalty  may  be  Within  Fixed  Limits. — A  mu- 
nicipal corporation,  with  power  to  pass  by-laws  and  to  affix 
penalties,  may,  if  not  prohibited  by  the  charter,  or  if  the 
penalty  is  not  fixed  by  the  charter,  make  it  discretionary, 
within  fixed  limits,  for  example,  "  not  exceeding  fifty  dol- 
lars." This  enables  the  tribunal  to  adjust  the  penalty  to 
the  circumstances  of  the  particular  case,  and  is  just  and  rea- 
sonable.    The  older  English  authorities,  so  far  as  they  hold 

Car.)  328;  compare  Crosby  v.  Warren,  1  Rich.  Law,  385.  An  ordinance 
treated  as  wholly  void  because  it  fixed  the  minimum  fine  for  an  offence  at 
five  dollars  when  the  law  required  it  to  be  three  dollars.  Petersburg  v. 
Metzker,  21  111.  205,  1859. 

1  Grand  Rapids  v.  Hughes,  15  Mich.  54,  1866.  "Whether  there  is  such  an 
implied  exclusion  must  depend  in  each  case  upon  the  supposed  intention 
of  the  legislature,  to  be  gathered  from  a  survey  of  the  whole  charter.  The 
authority  t<~>  adopt  an  ordinance  implies  the  right  to  enforce  it  by  proper 
pecuniary  penalties,  and  this  right  exists  unless  excluded  by  other  provis- 
ions of  the  charter. 


Ch.  XII.]  POWER    TO    DIPOSE    FINES,     &c.  383 

such  a  by-law  void  for  uncertainty,   are  regarded  as   not 
sound  in  principle,  and  ought  not  to  be  followed.1 

§  276.  Single  Offence  Cannot  be  Made  Double. — As  the 
power  to  pass  ordinances  and  to  punish  for  their  violation 
mnst  be  reasonably  exercised,  the  corporation  cannot  mul- 
tiply one  offence  into  many,  and  punish  for  each.  Thus, 
where  an  authorized  ordinance  prohibited  "any  person  from 
cutting  down  and  making  use  of  cedar  and  other  trees," 
within  a  specified  locality,  a  complaint,  charging  the  de- 
fendant "with  having  cut  down  a  cedar  tree  at  various 
times,  and  that  he  continued  to  do  so,  from  thnt  to  time, 
until  he  had  committed  one  hundred  violations  of  the  ordi- 
nance, by  cutting  down  one  hundred  cedar  trees,"  was  held 
to  set  forth  but  a  single  offence,  for,  said  the  court,  "the 
matter  charged  is  a  trespass  with  a  continuando.  which,  in 
law,is  but  one  offence,  and  it  may  well  be  that  every  tree  cut 
by  the  defendant  was  cut  on  one  day,  and,  under  the  ordi- 
nance, the  cutting  of  more  trees  than  one,  at  one  timey  would 
be  but  oue  offence."2 

§  277.  Where  there  is  a  limitation  upon  the  corporation 
as  to  the  amount  of  penalties  to  be  imposed  for  the  infrac- 
tion of  by-laws,  they  cannot  exceed  the  limit  directly,  noi 
can  they  do  so  indirectly  by  multiplying  what  is,  in  sub- 
stance, one  offence,  into  several,  or  subdividing  one  trans- 
action or  violation  into  a  number  of  offences,  and  annexing 
a  penalty  to  each.3    But  where  each  offence  is  distinct,  and 

1  Mayor,  &c.  v.  Phelps,  27  Ala.  55,  1855,  overruling,  on  this  point, 
Mayor,  &c.  v.  Yuille,  3  lb.  137;  compare,  Commissioners  v.  Harris,  7  Jones 
(Law)  281.  See,  also,  Piper  v.  Chappell,  14  Mees.  &  W.  623,649,  1845; 
Butchers'  Co.  v.  Bullock,  3  B.  &  Pul.  434;  Grant  on  Corp.  84.  In  re  Fen- 
nell,  &c,  24  Upper  Can.  Q.  B.  238.  A  by-law  fixing  one  penalty  for  the  first 
offence  and  a  larger  for  the  second,  and  a  still  larger  one  for  every  subse- 
quent offence,  does  not  appear  to  be  bad  for  uncertainty.  Butchers'  Co.  v. 
Bullock,  supra.  Where  the  penalty  is  fixed  by  by-law,  it  can  only  be 
changed  by  the  same  authority  which  affixed  it.  Rex  v.  Ashwell,  12  East, 
29;  Seaming  v.  Conger,  3  Leon.  7;  Moore,  75;  Bendl.  159;  Davis  v.  Low- 
den,  Carth.  29.  A  penalty  fixed  either  by  the  charter  or  by-law  is  essential. 
Bowman  o.  St.  John,  47  111.  :V.)7  \  Ashton  v.  Ellsworth,  48  111.  299.  Supra, 
sees.  271,  272. 

s  State  v.  Moultrieville,  Rice  (South  Car.)  Law.  158,  1839. 

3  Mayor,  &c.  of  New  York  r.  Ordrenan,  12  Johns.  120,  1815  (penalty  for 


384  MUNICIPAL     CORPORATIONS.  [Ch.  XH. 

the  punishment  for  each  is  within  the  power  of  the  corpora- 
tion to  impose,  the  punishment  is  not  made  illegal,  though 
the  separate  fines  in  the  aggregate  exceed  the  limit  allowed 
by  the  charter,  and  are  imposed  by  the  same  magistrate  or 
tribunal  at  one  sitting.1 

§  278.  By  its  charter,  the  power  of  a  city  corporation 
to  impose  fines  for  breaches  of  its  ordinances  was  limited 
to  one  hundred  dollars.  By  the  charter  the  city  had  also 
the  power  to  regulate  the  inspection  of  flour,  and  passed  an 
ordinance  by  which  any  person  selling  flour  without  inspec- 
tion should  be  fined  "five  dollars  for  each  barrel  so  sold." 
It  was  held  that  this  ordinance,  as  to  the  penalty,  was  valid 
so  far  as  to  authorize  a  fine  not  exceeding  one  hundred 
dollars  ;  that  if  a  single  sale  exceeded  twenty  barrels  the 
fine  could  be  but  one  hundred  dollars,  while,  if  it  was  less 
than  twenty  barrels,  the  fine  would  be  five  dollars  on  each 
barrel.  The  court  observed,  that  a  recovery  on  a  single 
transaction  where  more  than  twenty  barrels  were  sold, 
would  bar  any  future  proceeding  for  the  balance.9 

§  279.  Power  of  Forfeiture  must  be  Expressly  Con- 
ferred.— A  corporation  under  a  general  power  to  make  by- 
laws cannot  make  a  by-law  ordaining  a  forfeiture  of  prop- 
erly. To  warrant  the  exercise  of  such  an  extraordinary 
authority  by  a  local  and  limited  jurisdiction,  the  rule  is 
reasonably  adopted  that  such  authority  must  be  expressly 
conferred  by  the  legislature.8    And  even  if  the  power  to 

illegally  keeping  powder),  citing  and  approving  opinion  of  Lord  Mansfield 
in  Crupps  v.  Darden,  Cowp.  640.  See,  also,  Hart  v.  Mayor,  &c,  9  Wend. 
571,  588,  606,  1832;  Zylstra  v.  Charleston,  1  Bay  (South  Car.)  382,  1794; 
vide  Stokes  v.  Corporation  of  New  York,  14  Wend.  87. 

1  Heise  v.  Town  Council,  6  Rich.  (South  Car.)  Law,  404  (fines  for  vio- 
lating liquor  ordinance) ;  compare.  State  v.  Town  Council  of  Moultrieville, 
supra. 

«  Chicago  v.  Quimby,  38  HI.  274,  1865. 

3  Kirk  v.  Nowill,  1  Term  R.  118,  124,  per  Mansfield  and  Butter,  followed 
by  Court  of  Errors  of  New  York,  in  Hart  v.  Mayor,  &c.  of  Albany,  9  Wend. 
571,  588,  per  Sutherland,  J.;  p.  605,  per  Edmonds,  Senator;  2  Kyd  on  Corp. 
110  ;  Willcock  on  Municipal  Corporations,  180,  pi.  449;  Angell  &  Ames  on 
Corp.  9PC.  360;  Cotter  v.  Doty,  5  Ohio,  394,  1832;  White  v.  Tallman,  2 
Dutch.  (N.  J.)  67,  1856;  Phillips  v.  Allen,  41  Pa.  St.  481.     In  further  illus- 


Cji.  XII.]  power    TO    IMPOSE    FIXES,     &c.  385 

declare  a  forfeiture  is  conferred,  still  no  person  can,  by- 
ordinance,  be  deprived  of  his  property  by  forfeiture  with- 
out notice  or  without  legal  investigation  or  adjudication  ; 
an  ordinance  in  violation  of  this  principle  is  void,  as  "  con- 
trary to  the  genius  of  our  laws  and  institutions."1  In  Eng- 
land the  power  of  municipal  corporations  to  impose  a  for- 
feiture for  offences  created  by  ordinances  or  by-laws,  has 
been,  in  many  cases,  sanctioned  by  usage,  without  any 
express  power  in  the  charter  to  impose  the  forfeiture.  But 
in  this  country,  inasmuch  as  corporations  derive  all  their 
power  from  charter  or  act  of  the  legislature,  the  right  to 
inflict  a  forfeiture  must  be  plainly  given,  and  cannot  be 
derived  from  usage.2 

§  280.  Power  to  Fine  does  not  include  Power  to  For- 
feit.— How  strictly  the  courts  hold  that  municipal  corpora- 
tions cannot  pass  by-laws  ordaining  a  forfeiture  is  strik- 
ingly illustrated  by  the  case  of  Heise  v.  The  Town  Council 
of  Columbia.  The  town  council  had  power  to  enforce 
obedience  to  their  ordinances  "by  fine,  not  exceeding  fifty 
dollars."  Special  authority  was  given  to  municipal  corpo- 
rations to  grant  licenses  to  retail  liquor.  The  council  passed 
an  ordinance  relating  to  this  subject,  the  penalty  for  violat- 
ing which  was  a  "tine  of  not  more  than  fifty  dollars  for 
each  offence,  and  also  a  forfeiture  of  the  license."  It  was 
held  that  the  license  which  was  granted  and  paid  for  was, 
essentially,  property ;  that  the  council  could  only  impose 
fines,  and  that  it  had  no  power  to  ordain  a  forfeiture  of  the 
license,  there  being  (in  the  opinion  of  the  court)  no  differ- 
ence between  the  forfeiture  of  a  license  and  of  goods  and 
chattels/ 

tration,  see  Mayor,  &c.  v.  Ordrenan,  12  Johns.  122;  Phillips  v.  Allen,  41 
Pa.  St.  481 ;  Dunham  v.  Rochester,  5  Cowen,  402,  1826;  Baxter  v.  Common 
wealth,  3  Pa.  (Pen.   &  W.)  253;  Bergen  v.  Clarkson,  1  Halst.  (N.  J.)  352; 
Taylor  v.  Carondelet  (forfeiture  of  lease),  22  Mo.   105,  112;  Mayor,  &c.  of 
Mobile  v.  Yuille,  3  Ala.  137,  1841. 

'Cotter  v.  Doty,  5  Ohio,  384,  398;  Rosebaugh   v.   Baffin,    10  Ohio,  32, 
1840. 

2  Taylor  v.  Carondelet,  22  Mo.  105,  112;  Kirk  v.  Nowill,  1  Term  R.  118; 
Adley  v.  Reves.  1  Maule  and  Sel.  60. 

3  Heise  v.  Town  Council,  &c.,  6  Rich.  (South  Car,)  Law,  404,  1853. 

25 


886  MUNICIPAL    CORPORATIONS.  [Ch.  XII 

§  281 .  Judicial  Procedure  Necessary  in  some  Instances. 
— An  ordinance  of  tlie  city  of  New  Orleans  authorizing, 
without  any  prior  judicial  proceedings,  a  sale,  under  the 
orders  of  the  mayor,  of  all  property  suffered  to  remain  on 
the  levee  beyond  a  specified  period,  is  invalid,  since  it  makes 
the  corporation  judges  and  parties  in  the  same  cause,  and 
enforces  a  forfeiture  and  divests  the  owner  of  his  property 
without  a  trial  in  due  course  of  law.  Such  a  power  is  not 
similar  to  that  exercised  by  a  corporation  in  removing 
nuisances,  as  that  power  arises  from  necessity  and  ceases 
with  that  necessity.  It  would  be  competent  for  the  corpo- 
ration to  ordain  that  the  property  should  be  removed  at  the 
expense  of  the  proprietor,  and  to  recover  these  expenses, 
and  any  fine  which  might  be  imposed,  by  judicial  proceed- 
ings. l 

§  282.  Forfeiture  of  Animals  at  Large. — The  right  to 
denounce  a  forfeiture  against  animals  running  at  large  in  a 
town  or  city  contrary  to  the  provisions  of  ordinances  for- 
bidding it,  must  be  plainly  conferred  or  it  well  not  be  held 
to  exist.  This  is  in  accordance  with  the  rule  of  the  English 
courts,  that  a  statute  will  not  be  taken  to  invest,  by  impli- 
cation, a  municipal  corporation  with  the  extraordinary 
powers  of  forfeiting  the  property  of  the  subject,  and  that,  if 
it  be  intended  that  any  such  power  shall  be  given,  it  must 
be  by  express  words  to  that  effect.  The  cases  agree  in  hold- 
ing that  when  the  power  to  denounce  the  forfeiture  against 
such  animals  is  given,  there  should  be  either  notice,  actual 
or  constructive,  or  prior  legal  proceedings.  The  view  of 
the  courts  will  be  best  understood  by  referring  to  some  of 
the  cases  upon  the  subject.    In  Mississippi,  an  ordinance  au- 

1  Lanfear  v.  Mayor,  4  La.  97,  1831.  Compare  with  Guillotte  v.  New 
Orleans,  12  La.  An.  432,  1857,  in  which  it  was  held  that  an  ordinance  pro- 
viding a  forfeiture,  for  the  use  of  the  city  workhouse,  of  bread  illegally 
baked  in  violation  of  an  authorized  by-law  of  the  corporation,  is  not  contrary 
to  a  cousitutional  provision  declaring  that  vested  rights  shall  not  be  di- 
vested unless  for  purposes  of  public  utility  and  for  adequate  compensation 
previously  made.  It  may  be  observed,  that  the  court,  without  any  special 
discussion,  assumed  that  power  "  to  regulate  everything  which  relates  to 
bakers  "  gave  authority  to  denounce  a  forfeiture  of  bread  baked  contrary 
to  the  provisions  of  the  ordinance  of  the  city.  See,  on  this  point,  Mayor, 
iEc.  of  Mobile  v.  Yuille,  3  Ala.  137,  1841. 


Ch.  XII.]  POWER     TO     IMPOSE     FIXES,     &c.  387 

thorizing  the  seizure  and  sale  of  liogs  running  at  large, 
without  notice  or  trial,  or  opportunity  for  trial,  and  pro- 
viding that  one-half  of  the  proceeds  of  the  sales  should  go 
to  the  hospital  and  the  other  half  to  the  city  marshal,  was 
held  to  be  in  violation  of  the  constitutional  provision  that 
no  person  "can  be  deprived  of  his  property  but  by  due 
course  of  law,"  and  securing  right  to  a  jury  trial.1 

§  283.  In  a  similar  case  in  Ohio,  GrimJce,  J.,  delivering 
opinion  of  the  court,  observes  :  kl  The  ordinance  commands 
the  marshal  to  seize  and  impound  the  hogs,  and  then,  with- 
out any  reserve,  without  any  notice,  by  means  of  which  the 
owner  might  be  able  to  exculpate  himself,  directs  them  to 
be  sold  and  the  proceeds  placed  in  the  city  treasury.  Such 
an  ordinance  is  as  contrary  to  the  spirit  of  the  charter  (Cin- 
cinnati) as  it  is  alien  from  the  general  genius  of  our  institu- 
tions." 3 

§  284.  In  North  Carolina  the  general  principle  was  de- 
clared that  an  ordinance  of  an  incorporated  town  which 
authorizes  the  property  of  one  man  to  be  taken  from  him 
and  given  to  another,  without  any  notice  to  the  owner  or 
trial  of  his  rights,  was  unlawful.  The  town  authorities,  un- 
der power  given  to  make  ordinances  for  the  removal  of 
nuisances  and  for  the  good  government  of  the  town,  passed 
an  ordinance  to  this  effect :  ki  That  every  hog  at  large  in  the 
said  town  shall  be  taken  up  and  penned,  and  advertised  to 
be  sold  on  the  third  day,  and  unless  the  owner  should  pay 
the  charges  (specified  in  the  ordinance)  for  taking  up  and 
keeping  such  hog,  and  a  sale  is  effected,  the  money  arising 
therefrom,  after  paying  the  charges,  shall  be  paid  over  to 

Donovan  v.  Vicksburg,  29  Miss.  (7  Cush.)  247,  18oo.  Power  to  impose 
penalties  on  the  owners  of  animals  running  at  large  excludes,  by  implica- 
tion, the  power  to  enforce  a  by-law  upon  the  subject  in  any  other  way,  as, 
for  example,  by  a  sale  of  the  animals  found  at  large.  Miles  v.  Chamberlain, 
17  Wis.  440,  18G3.     Supra,  sees.  272,  273. 

2  Rosebaugh  v.  Saffin,  10  Ohio,  32,  37,  1840.  However  it  may  be  when 
the  power  to  forfeit  without  notice  or  prior  legal  proceedings  is  <./ 
conferral,  it  is  clear  that  the  power,  unless  plainly  and  expressly  given,  <  an- 
not  be  exercised  without  such  notice  and  previous  adjudication;  but  with 
these  tin-  remedy  may,  if  needful,  lie  "  prompt  and  strong."  Cincinnati  v 
Buckingham,   10  Ohio.  207,  262,  }>er  Lane,  C.  J. 


888  MUNICIPAL     CORPORATIONS.  [On.  XII. 

the  owner  of  the  said  hog."  The  validity  of  this  ordinance 
was  drawn  in  question,  and  two  points  were  ruled  by  the 
Supreme  Court :  1 .  That  the  ordinance  was  reasonable,  and 
the  corporation,  under  the  power  above  referred  to,  had  au- 
thority to  pass  it.  2.  That  it  sufficiently  provided  for 
notice  to  the  owner  by  the  impounding  of  the  animal  and 
the  three  days'  public  advertisement,  and  that  personal 
notice  was  not  necessary.1  In  a  subsequent  case  in  the  same 
•jourt  a  similar  ordinance  was  sustained.  It  was  objected 
that  it  was  invalid,  because  it  provided  for  no  judicial 
decision  condemning  the  property  to  be  sold.  This  objec- 
tion the  court  regarded  as  insufficient,  "since  the  owner 
may,  if  he  choose,  have  a  full  investigation  of  the  case  by 
bringing  an  action  of  replevin,  as  in  any  other  case  of 
distress."3 

§  285.  In  South  Carolina  it  has  been  held,  that  under 
authority  to  enforce  by-laws  by  fine,  an  ordinance,  other- 
wise legal,  which  authorized  the  marshal  to  kill  hogs  run- 
ning at  large,  contrary  to  the  ordinance,  and  appropriate 
them  to  his  own  use,  was  void.8 

1  Shaw  v.  Kennedy  (North  Car.)  Term  R.  158,  1817;  Helen  v.  Noe,  3 
Ire.  (Law)  493,  1843. 

3  Whitfield  v.  Longest,  6  Ire.  (Law)  168,  1846.  In  Iowa  a  similar  ordi- 
nance was  sustained.  Gooselink  v.  Campbell,  4  Iowa,  296,  1856;  Contra, 
Willis®.  Legris,  45  111.  289,1867;  Bullock  v.  Geomble,  lb.  218;  Poppen 
v.  Holmes,  44  111.  360.  But  see  Hart  v.  Mayor,  &c.  of  Albany,  9  Wend. 
571,  1832;  White  v.  Tallman,  2  Dutch.  (N.  J.)  67,  1856;  Phillips  v.  Allen, 
41  Pa.  St.  481.  Power  must  be  strictly  pursued  or  the  sale  will  be  void, 
and  the  officer  a  trespasser.  Clark  v.  Lewis,  35  HI.  417.  Sale  is  void  where 
two  animals,  belonging  to  different  owners,  are  sold  at  once.  lb.  Ante, 
sec.  101. 

8  McRae  ».  O'Lain,  cited  Kennedy  v.  Sowden,  1  McMullen  (South  Car.) 
Law,  328.  »  But  authority  to  impose  "fines  and  penalties  "  authorizes  a  fine 
against  those  who  violate  the  ordinance  forbidding  hogs  running  at  large, 
and  the  seizure,  impounding,  and  sale  (upon  notice)  of  the  animals  to  pay 
the  fine,  whether  they  belong  to  residents  or  non-residents.  Kennedy  v. 
Sowden  supra;  S.  P.  Crosby  v.  Warren,  1  Rich.  (South  Car.)  Law,  385, 
1845,  Wardlaw,  J.,  dissenting;  McKee  v.  McKee,  8  B.  Mon.  433,  1848.  But 
it  seems  doubtful,  upon  the  principles  adopted  in  the  construction  of 
powers  of  this  character,  whether  authority  to  impose  fines  and  penalties 
extends  any  further  than  to  the  imposition  of  pecuniary  fines  and  penalties. 
See  Mayor  of  Mobile  v.  Tuille,  3  Ala.  137 ;  White  e.  Tallman,  2  Dutch. 
(N.  J.)  67,  1856.     The  power  to  forfeit,  like  the  power  to  tax,  should  be 


Ch.  XII.J  POWER    TO    B1POSE    FIXES,  &c.  389 

§  2S6  Equity  will  not  Ordinarily  Relieve  against 
Valid  Forfeitures.— A  forfeiture  imposed  by  a  municipal 
corporation,  under  legislative  authority,  for  a  violation  of  a 
valid  by-law,  and  inflicted  as  a  penalty  for  such  violation, 
cannot  be  relieved  against  in  equity,  unless,  perhaps,  where 
peculiar  circumstances  furnish  grounds  for  equitable  inter- 
position, the  general  doctrine  being  that  equity  may  relieve 
against  forfeitures  declared  by  contract,  but  not  against 
those  expressly  declared  or  authorized  by  statute.1 

§  287.  Power  to  Enforce  by  Imprisonment  must  be  Ex- 
pressly Given. — In  this  country  it  is  not  unusual  to  provide, 
in  the  organic  act  of  municipal  corporations,  that  if  fines 
for  violation  of  by-laws  or  ordinances  are  not  paid,  the 
offender  may  be  committed  to  prison  for  a  limited  period. 
And,  in  respect  to  some  offences  public  in  their  character, 
the  power  to  imprison  in  the  first  instance  is  often  con- 
ferred." It  is  scarcely  necessary  to  add,  that  unless  the 
authority  be  plainly  given  it  does  not  exist,  and  when  given, 
before  it  can  be  exercised  there  must  be  a  judicial  ascertain- 
ment by  a  competent  tribunal  or  magistrate  of  the  guilt  of 
the  party.3 

given  either  expressly,  or,  at  all  events,  by  necessary  implication.  And  it 
has  been  held,  that  it  cannot  be  implied  from  the  power  "  to  impose  reason- 
able fines,"  and  to  cause  "all  such  fines  and  all  such  forfeitures  and 
penalties  as  may  be  incurred  under  the  laws  and  ordinances  of  the  cor- 
poration to  be  assessed,  levied,  and  collected."  Cotter  v.  Doty,  5  Ohio, 
395,  1832. 

1  Taylor  v.  Carondelet,  22  Mo.  105  (forfeiture  clause  in  lease) ;  Peachy 
v.  Somerset,  1  Str.  447;  Gorman  v.  Low,  2  Edw.  Ch.  324;  Keating  v.  Spar- 
row, 1  Ball  &  Beat.  367;  State  v.  Railroad  Company,  3  How.  (U.  S.)  534. 

2  Barter  v.  Commonwealth,  3  Pa.  (Pen.  &  W.J  253,  1831 ;  New  Orleans 
v.  Costello,  14  La.  An.  37;  Burlington  v.  Kellar,  iS  Iowa,  59;  London  v. 
Wood,  12  Mod.  686;  Bab  v.  Clerke,  Moore,  411;  Clarke's  Case,  5  Co.  64;  1 
Roll.  Abr.  364;  Com.  Dig.  By-law,  E,  1;  Chilton  v.  Railway  Company, 
16  M.  &  W.  212;  King  v.  Merchant  Tailors'  Company,  2  Lev.  200. 

3  Exparte  Burnett,  30  Ala.  461,  1857.  Fines  for  the  violation  of  ordi- 
nances, held  under  special  charter  provisions,  collectible  by  commitment  of 
the  persons  or  by  fieri  jacias.  Huddleson  v.  Ruffin,  6  Ohio  St.  604.  Au- 
thority to  enforce  penalties  for  violations  of  ordinances  by  "  distress  and 
sale  "  of  property  must  be  expressly  or  plainly  granted.  White  v.  Tallman, 
2  Dutch.  (N.  J.)  67,  1856;  Bergen  v.  Clarkson,  1  Halst.  (N.  J.)  67.  And 
in  England,  likewise,  such  a  power  cannot  be  conferred  by  the  crown,  and 


390  MUNICIPAL     CORPORATIONS.  [Ch.  XIL 

On  Whom  Ordinances  are  Binding,  and  Who  must 
Notice  them. 

§  288.  Who  Bound.— In  England  the  by-laws  of  a 
municipal  corporation  bind  not  only  the  members,  but,  if 
thev  are  general  in  their  nature  and  purposes,  and  not 
limited  to  any  particular  class  or  description,  but  intended  to 
extend  to  all  persons  coming  within  the  local  jurisdiction  of 
the  corporation,  they  bind  all,  whether  members  or  strangers, 
and  all  must  take  notice  of  them  at  their  peril.  And  by- 
laws made  by  a  municipal  corporation  with  respect  to  a 
liberty  or  franchise  granted  them,  with  local  jurisdiction 
beyond  the  limits  of  the  municipality,  are  as  binding  upon 
persons  going  into  the  liberty  as  the  by-laws  of  the  city 
upon  those  who  come  within  its  walls.1 

§  289.  So,  also,  in  this  country  it  is  settled  that  valid 
ordinances  bind  not  only  the  inhabitants  of  the  corporation, 
but  also  strangers  or  non-residents  coming  within  its 
limits.  These,  for  the  time  being,  are  regarded  as  inhabit- 
ants, and  liable  in  the  same  manner  for  violations  of  ordi- 
nances.a    So  far  is  plain.    But  suppose  a  person  living  with- 

can  only  exist  by  authority  of  parliament  or  a  special  custom.  Clerke  v. 
Tucker,"  3  Lev.  281;  S.  C,  2  Vent.  183;  Lee  v.  Walis,  1  Keny.  Cas.  295; 
Sayer,  263;  Adley  v.  Reeves,  2  Maule  &  Sel.  60;  Willc.  179;  Glover,   311. 

1  Willc.  105,  107;  Glover,  289,  290;  London  v.  Vanacker,  1  Ld.  Raym. 
498 ;  Salk.  142 ;  Pierce  v.  Bartram,  Cowp.  270 ;  Fazakerley  v.  Wiltshire,  1 
Stra.  462;  Kirk  v.  Nowill,  1  Term  R.  118;  Butcher  Co.  v.  Mercy,  1  H.  Bl. 
370.  Do  not  bind  beyond  limits  of  authorized  jurisdiction.  See  3  Mod. 
158;  T.  Jones,  144;  2  Brownl.  177;  Hob.  211;  Hutt.  6 ;  11  Rep.  53;  Godh. 
252.  An  ordinance  passed  in  1834,  prohibiting  the  erection  of  "stables,  &c. 
in  the  interior  of  the  city  of  New  Orleans,  or  any  of  its  incorporated  sub- 
urbs," held  not  to  extend  to  the  city  of  Lafayette,  subsequently  added,  by 
act  of  the  legislature,  to  the  city  of  New  Orleans.  New  Orleans  v.  Ander- 
son, 9  La.  An.  323,  1854. 

2  Heland  v.  Lowell,  3  Allen,  407,  1862 ;  Whitfield  v.  Longest,  6  Ire.  (Law 
268,  1846;  approving  Pierce  v.  Bartram,  Cowp.  269.  See,  also,  Buffalo?). 
Webster,  10  Wend.  99;  Commissioners  of  Wilmington  v.  Roby,  8  Ire.  (Law) 
250;  Commissioners  of  Plymouth  v.  Pettijohn,  4  Dev.  (Law)  591;  Strauss  v. 
Pontiac,  40  111.  301,  1866;  City  Council  v.  Pepper,  1  Rich.  (S.  Car.)  Law, 
364,  1845;  City  Council  v.  King,  4  McCord  (S.  Car.)  487;  Marietta  v.  Fear- 
ing, 4  Ohio,  427,  1831 ;  Dodge  v.  Gridley,  10  Ohio,  173 ;  Horney  v.  Sloan,  1 
Smith  (Ind.)  136 ;  Kennedy  v.  Sowden,  1  McMullen,  323. 


Ch.  Xn.]        ON    WHOM    ORDINANCES    ARE .  BINDING.  391 

out  the  limits  of  the  corporation  suffers  his  cattle  or  prop- 
erty to  stray  into  it  and  violate  its  ordinances.  Here  two 
questions  may  arise:  1st.  Can  such  property,  being  within 
the  corporation,  be  dealt  with  the  same  as  if  it  belonged  to 
an  inhabitant  of  the  corporation?  It  is  held  that  it  can.1 
2d.  Can  such  non-resident  owner  be  made  amenable  per- 
sonally to  a  penalty  to  the  corporation  ?  In  other  words, 
has  a  corporation  power,  unless  expressly  conferred,  to  pro- 
vide for  collecting  a  penalty  from  a  non-resident  who  suffers 
his  property  to  violate  an  ordinance,  but  who  himself  was, 
at  the  time,  without  the  corporate  limits?  This  remains, 
perhaps,  to  be  settled,  though  it  is  certain  that  ordinances 
will  not  be  construed  to  extend  to  persons  living  without  the 
corporation  and  not  being  within  it,  unless  such  an  intention 
plainly  appears.2 

§  290.  Notice. — All  persons  upon  whom  ordinances  are 
binding  are  bound  to  take  notice  of  them.9  But  where  a 
party  is  liable  to  a  penalty  if  he  does  not  do  a  given  act 
upon  notice,  a  newspaper  notice  is  not  sufficient,  unless  that 
mode  is  pointed  out  by  the  law  or  general  power  is  given  to 

1  Whitfield  v.  Longest,  6  Iredell  (Law),  268,  1846;  Gosselinkw.  Campbell, 
4  Iowa,  296,  300,  1856;  Reed  v.  People,  1  Park.  Cr.  Rep.  481. 

*  Plymouth  v.  Pettijohn,  4  Dev.  (Law)  591.  Inability  to  punish  non- 
resident owner  criminally  in  respect  to  property  within  corporate  limits,  see 
Reed  v.  People,  1  Park  Cr.  Rep.  481.  Power  "to  make  such  prudential 
rules  and  regulations  as  may  seem  necessary  lor  the  better  improving  of  the 
common  lands  of  a  town,"  &c,  extends  only  to  regulations  as  between  those 
who  have  the  right  to  enjoy  them  in  common,  but  does  not  confer  the  power 
of  imposing  a  penalty  for  trespasses  by  strangers ;  for  such  acts  the  town 
must  pursue  its  common  law  remedy.  Foster  v.  Rhoads,  19  Johns.  (N.  Y.) 
191,  1821.  See,  also,  People  v.  Works,  7  Wend.  486;  Holladay  v.  Marsh,  3 
Wend.  142.  Ordinances  cannot  have  an  extra-territorial  effect,  unless  the 
power  be  plainly  conferred  upon  the  corporation.  Strauss  v.  Pontiac  (liquor 
ordinance),  40  111.  301,  1866;  Gosselink  v.  Campbell,  4  Iowa,  296.  Whether 
a  party  resides  within  the  limits  embraced  by  an  ordinance,  is  a  question  of 
fact.  Board  v.  Pooley,  11  La.  An.  743;  Police  Jury  v.  Villaviabo,  12  lb. 
788;  New  Orleans  v.  Boudu,  14  lb.  303. 

8  Palmyra  v.  Morton  (sidewalk  ordinance),  25  Mo.  593,  1860  ;  Buffalo  v. 
Webster,  10  Wend.  99,  1833.  See  Reed  v.  People,  1  Park.  Cr.  Rep.  481; 
City  of  London  v.  Vanacre,  12  Mod.  270,  272;  Glover  on  Corp.  207,  290; 
post,  sees.  471,  642. 


392  MUNICIPAL    CORPORATIONS.  [Ch.  XII. 

the  corporation  embracing  within  it  the  authority  to  pre- 
scribe the  kind  and  manner  of  notice.1 

Ordinances  Relating  to  the  Licensing,  Regulation,  and 
Taxing  of  Amusements  and  Occupations,  In- 
cluding the  Sale  of  Intoxicating  Liquors. 

§  291.  Nature  of  License  Power.—  Charters  not  unfre- 
quently  confer  upon  the  corporation  the  power  "  to  license 
and  regulate,"  or  to  "license,  regulate,  and  tax,"  certain 
avocations  and  employments,  and  to  "  tax  and  restrain"  or 
"prohibit"  exhibitions,  shows,  places  of  amusement,  and 
the  like  ;  and  unless  there  is  some  specific  limitation  on  the 
authority  of  the  legislature  in  this  respect,  such  provisions 
are  constitutional.3    Concerning  useful  trades  and  employ - 

1  Keckeley  v.  Commissioners  of  Roads,  4  McCord  (S.  Car.)  257,  1828. 

2  City  v.  Clutch,  6  Iowa,  546,  1858.  In  Mayor,  &c.  of  Mobile  v.  Yuille,  3 
Ala.  137,  1841,  it  was  determined  that  there  was  nothing  in  the  constitu- 
tion of  the  state  which  would  invalidate  a  grant  of  power  to  a  municipal 
corporation  "to  license  bakers,  and  regulate  the  weight  and  price  of  bread,  and 
to  prohibit  the  baking,  for  sale,  except  by  those  licensed."  Such  a  grant  of 
power  does  not  unlawfully  interfere  with  the  right  of  citizens  to  pursue 
their  lawful  occupations.  In  the  City  of  Boston  v.  Schaffer,  9  Pick.  415, 
1830,  it  was  decided  that  it  is  competent  for  the  legislature  to  grant  a  city 
or  town  power  to  require  the  payment  of  money  as  the  condition  of  exer- 
cising particular  employments,  e.  g.  giving  theatrical  or  other  exhibitions. 
This  is  not  in  the  nature  of  a  tax,  which  must  be  general,  but  of  an  excise 
on  special  vocations.  Approved,  Cincinnati  v.  Bryson,  15  Ohio,  625 ;  New 
Orleans  v.  Turpin  (auctioneers),  13  La.  An.  56,  1858;  Municipality  v.  Dubois 
(livery  stable  keeper),  10  lb.  56;  Charity  Hospital  v.  Stickney,  2  La.  An. 
550;  Slaughter  v.  Commonwealth,  13  Graft.  (Va.)  967;  Carrol  v.  Mayor,  &c, 
12  Ala.  173;  Merriam  v.  New  Orleans,  14  La.  An.  318;  Wynne  v.  Wright,  1 
Dev.  &B.  (N.  Car)  Law,  19;  The  Mayor,  &c.  v.  Hartridge,  8  Geo.  23;  Cin- 
cinnati v.  Bryson,  15  Ohio,  625,  dissenting  opinion  of  Burchard.  J. ;  Collins 
v.  Louisville,  3  B.  Mon.  (Ky.)  133;  The  Germania  v.  State,  7  Md.  1;  The 
States.  Roberts,  11  Gill  &  Johns.  (Md.)  506;  Sears®.  West,  1  Murph.  (N. 
Car.)  291;  People  v.  Thurber,  13  111.  557;  Savannah  v.  Charlton,  36  Geo. 
460,  1867.  Post,  sees.  624,  630;  see  chapter  on  Taxation,  post.  Ante,  sec. 
79.     Kniper  v.  Louisville,  7  Bush  (Ky.)  599. 

These  cases  show  some  diversity  of  opinion  as  to  the  right  to  tax  partic- 
ular employments  as  distinguished  from  property;  but  the  correct  view,  it  ia 
submitted,  is  this:  Unless  specially  restrained  by  the  constitution,  the  leg- 
islature may  provide  for  the  taxing  of  any  occupation  or  trade;  and  may 
confer  this  power  upon  municipal  corporations.     But  such  taxes  are  apt  to 


Ch.  XII.  ]     ORDINANCES     LICENSING    AMUSEMENTS,    &o/       393 

ments,  a  distinction  is  to  be  observed  between  the  power  to 
"license"  and  the  power  to  "tax."  In  such  cases  the  for- 
mer right,  unless  such  appears  to  have  been  the  legislative 
intent,  does  not  give  the  authority  to  prohibit,  or  to  use  the 
license  as  a  mode  of  taxation,  with  a  view  to  revenue,  but  a 
reasonable  fee  for  the  license  and  the  labor  attending  its 
issue  may  be  charged.  Respecting  amusements,  exhibi- 
tions, &c,  the  authority  of  the  corporation  under  the  power 
to  license  has  been  regarded  as  greater  than  when  the  same 
word  is  employed  as  to  trades  and  occupations.1  Words  of 
this  character,  however,  do  not  always  have  exactly  the 
same  meaning,  and  the  intention  of  the  legislature  in  using 
them  must  often  be  gathered  from  the  whole  charter  and  the 
general  legislation  of  the  state  respecting  the  subject  matter. 

§  292.  In  harmony  with  the  foregoing  principles,  it  has 
been  held  that,  under  authority  "to  license  and  regulate" 

be  inequitable  and  the  principle  not  free  from  danger  of  great  abuse.  Hence 
ordinances  of  this  character  ought  not  to  be  sustained,  unless  the  authority 
be  expressly  or  otherwise  unequivocally  conferred. 

1  Ash  v.  People,  11  Mich.  347;  ante,  p.  198,  sec.  79;  Freeholders  v.  Bar- 
ber, 2  Halst.  64;  Carroll  v.  Tuscaloosa,  12  Ala.  (N.  S.)  173;  Greensboro  v. 
Mullins,  13  lb.  341;  State  e.  Roberts,  11  Gill  &  Johns.  506;  City  Council  •. 
Ahrens,  4  Strob.  241;  Kip  v.  Patterson,  2  Dutch.  298;  Portland  v.  O'Neill, 
1  Ire.  218;  Bennett  v.  Birmingham,  31  Pa.  St.  15;  Commonwealth  v.  Stod- 
der,  2  Cush.  562;  Day  v.  Green,  4  Cush.  433;  Dunham  v.  Rochester,  5  Cow. 
462;  Lawrenceburg  v.  West,  16  Ind.  337;  Cheney  v.  Shelbyville,  18  Ind. 
84 ;  Bennett  v.  People,  30  111.  389 ;  East  St.  Louis  v.  Wehrung,  46  111.  392  ; 
Savannah  v.  Charlton,  36  Geo.  460.     Post,  chap.  XIX. 

Distinction  between  taxation  and  police  regulation  well  stated  by  Depue, 
J.,  in  State  v.  Hoboken,  33  N.  J.  Law,  280,  1869;  Commonwealth  v.  Mark- 
ham,  7  Bush,  486,  1870.  Post,  sec.  609.  See,  also,  Kip  v.  Patterson,  2 
Dutch.  (N.  J.)  298;  Mayor  v.  Avenue  Railroad  Company,  32  N.  Y.  261 ;  33 
lb.  42,  distinguished  and  questioned  in  Frankford  Railway  Company  v. 
Philadelphia,  58  Pa.  St.  119,  1868;  Johnson  v.  Philadelphia,  60  Pa.  St.  445; 
Freeholders  v.  Barber,  2  Halst.  (N.  J.)  64.  Difference  between  tax  and  s 
license  to  exercise  particular  callings  upon  making  pecuniary  compensation 
for  the  privilege.  People  v.  Thurber,  13  III.  557 ;  Mount  Carmel  v.  Wabash 
Co.,  50  111.  69;  Kniper  v.  Louisville,  7  Bush,  599.  Smith  v.  City  of  Madi- 
son, 7  Ind.  86,  1855,  so  far  as  it  holds  that  authority  "  to  suppress  and  re- 
strain "  bowling  saloons  confers  the  power  to  license  and  tax  them,  cannot, 
as  it  seems  to  us,  be  sustained.  Mayor,  &c.  v.  Beasley,  1  Humph.  (Trim., 
240,  holds  that  power  in  a  charter  to  regulate  and  restrain  tippling  houses 
did  not  confer  the  power  to  tax  them. 


394  MUNICIPAL     CORPORATIONS.  [Ch.  XII. 

draymen,  &c,  a  municipal  corporation  may,  by  ordinance, 
require  a  license  to  be  first  taken  out,  and  charge  a  reason- 
able sum  for  issuing  the  same  and  keeping  the  necessary 
record,  but  cannot,  by  virtue  of  this  authority,  without 
more,  levy  a  tax  upon  the  occupation  itself  ;  and,  under  the 
power  to  regulate,  it  may  make  proper  police  regulations  as 
to  the  mode  in  which  the  employment  shall  be  exercised.1 

§  293.  So  authority  to  a  city  to  adopt  rules  and  orders 
"for  the  due  regulation  of  omnibuses,  stages,   &c,"  was 

1  Cincinnati  v.  Bryson,  15  Ohio,  625,  1846.  As  to  correctness  of  applica- 
tion of  the  principle  of  law  to  the  facts,  quote.  Consult,  in  connection  with 
the  above  case.  Mays  v.  Cincinnati,  1  Ohio  St.  268,  1853;  with  which  com- 
pare, Cincinnati  v.  Buckingham,  10  Ohio,  261 ;  and  see  cases  cited  supra, 
sec.  291.  An  act  to  regulate  and  license  the  keeping  of  dogs,  was  regarded  as 
an  exercise  of  the  police,  and  not  the  taxing  power  of  the  state,  and  not  to 
be  within  the  constitutional  provision  requiring  uniformity  of  taxation. 
Carter*.  Dow,  16  Wis.  298,  1862;  Tenneyi?.  Lenz,  lb.  566.  In  the  case  last 
cited,  Paine,  J.,  observes:  "We  cannot  assent  to  the  position  that,  if  the 
sum  required  for  a  license  exceeds  the  expense  of  issuing  it,  the  act  tran- 
scends the  licensing  power,  and  imposes  a  tax.  By  such  a  theory  the  police 
power  would  be  shorn  of  all  efficiency.  .  .  .  We  have  no  doubt,  there- 
fore, that  the  legislature  may,  in  regulating  any  matter  that  is  a  proper  sub- 
ject of  the  police  power,  impose  such  sums  for  licenses  as  will  operate  as 
partial  restrictions  upon  the  business,  or  upon  the  keeping  of  the  particular 
kinds  of  property  regulated."  See,  also,  Fire  "Dej^artment  v.  Helfenstein,  16 
Wis.  136.     Ante,  sec.  93.     Post,  sec.  609. 

In  Ash  v.  People,  11  Mich.  347,  1863.  it  appeared  that,  by  its  charter, 
authority  was  given  to  a  city  to  erect,  establish,  and  regulate  markets  and 
market  places,  and  to  license  and  regulate  butchers  and  shop-keepers  at  any 
other  place  in  the  city,  for  the  sale  of  meats,  &c.  and  to  authorize  the  mayor 
to  grant  such  licenses  and  to  prescribe  the  sum  of  money  to  be  paid  into  the 
treasury  of  the  city  therefor.  An  ordinance  prohibiting  the  keeping  of 
meat  shops  outside  of  the  public  markets  without  a  license,  and  requiring 
the  payment  of  a  license  fee  of  five  dollars,  was  sustained,  although  the 
amount  exceeded  the  expense  of  making  and  registering  the  license.  The 
court  denied  that  the  fee  demanded  was  a  tax,  and  regarded  it  as  but  a  rea- 
sonable compensation  for  the  additional  expense  of  municipal  supervision 
over  the  business  at  the  place  licensed.  A  ferry  license  Jee  of  fifty  dollars 
was  held  not  to  be  a  tax,  within  the  meaning  of  the  term,  as  used  in  the 
constitution  of  Michigan  and  foe  charter  of  the  city  of  Detroit  Chilvers  v. 
People,  11  Mich.  43,  1862;  ante,  sec.  79.  "The  power  to  license  and  reg- 
ulate carries  with  it  the  right  to  require  the  payment  of  a  [reasonable]  sum 
in  consideration  of  the  license."  Per  Wright,  J.,  in  State  v.  Herod,  29  Iowa, 
123,  1870.  *  Post,  chap.  XIX.  sec.  609. 


Ch.  XH.]     ORDINANCES     LICENSING     AMUSEMENTS,     &c.       395 

held  not  to  authorize  the  adoption  of  an  ordinance  requirino- 
the  payment  of  a  tax,  or  duty,  on  each  carriage  licensed 
varying  from  one  to  twenty  dollars,  according  to  the 
different  kinds  of  carriages,  and  the  stands  occupied.  This 
was  regarded  as  a  direct  tax  upon  the  vehicle  used,  or  its 
owner,  and  not  necessary  to  secure  the  objects  of  the  above 
grant  of  power  to  the  city.1  So  where  under  an  act  author- 
izing the  trustees  of  a  village  corporation  to  make  ordinances 
"in  relation  to  hucksters,  and  for  the  good  government  of 
the  village,"  it  was  held  that  an  ordinance  was  unauthor- 
ized which  required  that  hucksters  should,  before  exercising 
their  employment,  take  a  license,  and  be  taxed  a  sum 
varying  from  five  to  thirty  dollars.3 

§  294.  On  the  other  hand  the  power  to  "license,  regu- 
late, and  restrain  amusements,"  it  was  admitted  or  taken 
for  granted  would  authorize  an  ordinance  taxing,  or  re- 
quiring exhibitors  to  pay  a  specific  sum  for  the  privilege, 
this  being  considered  as  a  means  of  regulating  and  restrain- 
ing them.'     So  a  grant  of  power  to  a  city  or  town  to  license 

1  Commonwealth  v.  Stodder,  2  Cush.  562,  572,  1848;  distinguished  from 
Boston  v.  Schaffer,  9  Pick.  415,  as  to  licenses  for  theatrical  exhibitions. 
Power  to  the  city  council  of  Charleston  to  make  inter  alia,  "such  ordi- 
nances respecting  streets,  carriages,  wagons,  carts,  drays,  &c.  as  to  them 
shall  seem  expedient  and  necessary,"  was  held  to  authorize  an  ordinance 
requiring  all  persons  who  drive  for  hire  any  cart,  dray,  wagon,  or  omnibus 
within  the  city,  to  take  out  a  license,  and  to  require  the  vehicle  to  be  num- 
bered, or  on  failure  to  do  so  to  pay  a  fine.  City  Council  v.  Pepper,  1  Rich. 
(South  Car.)  Law,  364,  1845.  A  similar  ordinance,  and  imposing  annual 
charge  on  each  car  of  a  street  railway  company,  was  sustained  as  a  police 
regulation.  Frankford  Railway  Company  v.  Philadelphia,  58  Pa.  St.  119 
1868;  S.  P.  Johnson  v.  Philadelphia,  69  Pa.  St.  445.  Contra,  Mayor  v. 
Avenue  Railroad  Company,  32  N.  Y.  261.  Power  to  license,  tax  and*re<m- 
late  horse  railroads,  hackney  carriages,  &c.  does  not  extend  to  taxation  of 
private  vehicles  used  by  a  merchant  or  manufacturer.  St.  Louis  v  Grove  46 
Mo.  574,  1870. 

*  Dunham  v.  Rochester,  5  Cowen,  462,  466,  1826.  See  further,  Index, 
Markets. 

'  Hodges  v.  Mayor,  2  Humph.  (Tenn.)  61.  See  also,  Carter  v.  Dow,  16 
Wis.  299;  Tenny  v.  Lenz,  lb.  567.  Speaking  of  this  subject,  Mr.  Justice 
Cooley  expresses  it  as  his  opinion  that,  where  the  right  to  impose  license 
fees  to  operate  as  a  restriction  upon  the  business  or  thing  licensed  can  be 
fairly  deduced  from  the  taxing  power  conferred  upon  the  corporation,  it 


39  j  MUNICIPAL    CORPORATIONS.  [Ch.  XII. 

exhibitions  "on  such  terms  and  conditions  as  to  it  may 
seem  just  and  reasonable,"  authorizes  it  to  exact  money  for 
the  license  ;  it  is  not  confined  to  regulating  time  and  place, 
establishing  police  regulations,  &C1 

§  295.  Right  must  be  plainly  Conferred. — Even  the 
right  to  license  must  be  plainly  conferred,  or  it  will  not  be 
held  to  exist.  Thus,  power  to  make  "by-laws  relative  to 
hucksters,  grocers,  and  victualling  shops,"  does  not  au 
thorize  the  corporation  to  exact  a  license  from  persons 
carrying  on  such  business.  Nor  does  the  general  power 
to  pass  prudential  by-laws,  not  inconsistent  with  the  laws 
of  the  state,  confer  the  authority  to  demand  a  license.2 

§  296.     Monopolies  invalid. — The  power  to  license  and 
regulate  a  lawful  and  necessary  business  will  not  give  the 

should  be  done,  rather  than  to  derive  the  right  solely  from  the  power  to 
regulate.     Const.  Lira.  202,  note. 

1  Boston  v.  Schaffer,  9  Pick.  415,  1830;  distinguished  from  Common- 
wealth v.  Stodder,  2  Cush.  562,  572,  1848. 

2  Dunham  ■».'  Rochester,  5  Cow.  462,  1826;  Commonwealth  v.  Stodder,  2 
Cush.  562,  1848;  Mays  v.  Cincinnati,  1  Ohio  St.  268,  1853;  Gale  v.  Kala- 
mazoo (market  house  contract),  23  Mich.  344,  1871.  By-laws  requiring  a 
license,  which  may  be  so  heavy  as  to  amount  to  a  prohibition,  were  justly 
considered  to  be  in  restraint  of  trade,  which  the  general  law  favors,  and  in 
this  case  were  adjudged  void,  "  both  for  want  of  jurisdiction"  in  the  cor- 
poration to  pass  them,  and  for  want  of  "conformity  to  the  general  law." 
1  Ohio  St.  268.  Where  the  charter  gave  the  corporation  the  power  "to 
license  bakers,  and  to  prohibit  sales  of  bread  except  by  those  licensed,"  the 
court  doubted  whether  under  this,  aside  from  the  taxing  power  of  the  cor- 
poration, an  ordinance  could  be  supported  which  required  twenty  dollars 
to  be  paid  by  the  baker  for  a  license,  although  it  admitted  that  the  corpora- 
tion could  require  a  fee  for  issuing  and  registering  the  license.  Mayor,  &e. 
of  Mobile  v.  Yuille,  3  Ala.  137,  1841.  Statutory  conditions  precedent  must 
be  complied  with  to  make  a  license  valid;  and  licenses  are  generally  con- 
sidered personal,  ceasing  with  the  life  of  the  license,  aud  not  transferable 
without  consent.  Munsell  v.  Temple  (grocery  license),  3  Gilm.  (111.)  96; 
Lewis  v.  United  States,  Morris  (Iowa)  199;  Lombard  v.  Cheever  (ferry 
license),  Jo.  473;  Brunette  v.  Mayor,  9  La.  430.  As  to  power  to  revoke 
licenses:  Towns®.  Tallahassee,  11  Flor.  130,  1866.  "Junk  Shops,"  defined 
by  O'Neall,  C.  J.,  "to  be  a  place  where  odds  and  ends  are  purchased  or 
sold,"  and  cities  are  often  empowered  to  exact  a  license  from  keepers 
thereof.  City  Council  e.  Goldsmith,  12  Rich.  (South  Car.)  Law,  470,  1860. 
Shoics  defined  :  McKee  v.  Town  Council,  Rice  (South  Car.)  Law.  24.  Licensed 
auctioneer  held  not  liable  to  the  payment  of  a  pawnbroker's  license,  under  a 
city  ordinance.     Hunt  v.  Philadelphia,  35  Pa.  St.  277. 


Ch.  XII.]     ORDINANCES     LICENSING    AMUSEMENTS,     &c.        397 

corporation  the  power  to  make  contracts  which  create,  or 
tend  to  create,  a  monopoly.' 

§  297.  Intoxicating  liquors. — The  authority  of  muni- 
cipalities to  license,  tax,  restrain,  or  prohibit  the  traffic  in, 
or  sale  of,  intoxicating  liquors,  is  so  differently  conferred, 
and  so  largely  influenced  by  the  general  legislation  and 
policy  of  the  State  on  the  subject,  that  the  decisions  relat- 
ing to  it  are  mostly  of  local  application.  Sometimes  the 
State  laws  are  manifestly  intended  to  repeal  or  modify  prior 
special  charter  provisions,  which  gave  the  control  of  the 
matter  to  the  local  authorities  ;2  and  at  other  times  incorpor- 
ated places  have,  by  the  course  of  legislation,  been  excepted 
from  the  general  operation  of  the  State  laws,  and  have  been 
allowed  to  license,  regulate,  or  prohibit  the  traffic,  as  they 
deemed  best." 

1  Chicago  v.  Rumpff,  45  111.  90,  1867.  In  this  case,  under  a  power 
granted  to  city,  in  its  charter,  to  regulate  and  license  the  slaughtering  of 
animals  within  the  corporate  limits,  the  common  council  passed  an  ordi- 
nance, whereby  a  particular  building  was  designated  for  the  slaughtering  of 
all  animals  intended  for  sale  or  consumption  in  the  city,  the  owners  of 
which  were  granted  the  exclusive  right,  for  a  specified  period,  to  have  all 
such  animals  slaughtered  at  their  establishment,  they  to  be  paid  a  specific 
sum  for  the  privilege  by  all  persons  exercising  it,  and  to  have  the  option  of 
accepting  such  proposition,  but  which  was  not  to  take  effect  until  they  ex- 
ecuted a  certain  bond  therein  required  ;  and  it  was  held  that  this  action  of 
the  corporate  authorities  could  not  be  regarded  as  regulating  or  licensing 
the  business,  but  was  simply  a  conditional  proposition,  which,  if  accepted, 
would  constitute  a  contract.  It  was  also  held  that  this  contract  tended  to 
create  a  monopoly,  and  was  therefore  void.  And  the  opinion  was  expressed 
that  under  the  charter,  authority  was  conferred  simply  to  pass  ordinances 
to  locate  and  construct,  and  to  regulate,  license,  restrain,  abate,  or  prohibit 
slaughtering  establishments  within  the  prescribed  limits;  and  to  that  end 
the  corporate  authorities  may  so  regulate  the  business  as  to  prohibit  its  ex- 
ercise, except  in  a  particular  place;  but  the  spot  so  designated  must  be 
open  to  the  enjoyment  of  all  persons  alike,  upon  the  same  terms  and  condi- 
tions. A  monopoly  cannot  be  implied,  but  must  rest  upon  express  grant. 
Canal  Company  v.  Railroad  Company,' 11  Leigh  (Va.)  42,  per  Tucker,  Presi- 
dent; Gale  v.  Kalamazoo,  23  Mich.  344,  1871,  in  which  the  opinion  of 
Cooley,  J.,  will  be  found  to  be  highly  instructive.  Post,  chap.  XVIII.  as  to 
gas  companies.     Post,  sec.  318,  note. 

8  State  v.  Harris,  10  Iowa,  441;  Burlington  v.  Kellar,  18  Iowa,  59;  Ham- 
mond v.  Haines,  25  Md.  541. 

8  Peilue  v.  Ellis   IS  Geo.  586;  Trustees  v.  Keeting,  4  Denio,  341.     Cod 


398  MUNICIPAL     CORPORATIONS.  [Ch.  XII 

§  298.  Where  there  are  general  laws  of  the  State  re- 
specting the  sale  of  intoxicating  liquors,  a  public  corpora- 
tion, by  virtue  of  a  general  power  "to  make  all  by-laws 
that  maybe  necessary  to  preserve  the  peace,  good" order, 
and  internal  police"  therein,  is  not  not  authorized  to  pass 
an  ordinance  requiring  a  corporate  license,  and  punish- 
ing persons  who  sell  such  liquors  without  being  thus  li- 
censed.1 

§  299.  In  the  absence,  however,  of  controlling  general 
legislation,  power  to  a  city  to  pass  "  in  general,  every  other 
by-law  or  regulation  that  shall  appear  to  the  city  council 
requisite  and  necessary  for  the  security,  welfare,  and  conve- 
nience of  the  city,  or  for  preserving  the  peace,  order,  and 
good  government  within  the  same,"  was  held  to  authorize 
an  ordinance  (and  the  same  is  constitutional)  to  prevent 
shopkeepers,    unless  licensed  by  the  city,  from   keeping 

struction  of  charters  in  connection  with  state  laws  on  the  subject.  Town 
Council®.  Harbers,  6  Rich.  (South  Car.)  Law,  96;  lb.  404;  State  v.  Esta- 
brook,  6  Ala.  653;  West  v.  Greenville,  39  Ala.  69;  Adams  v.  Mayor,  29  Geo. 
56;  Chaslain  v.  Town  Council,  29  Geo.  333;  Cuthbert  v.  Conley,  32  Geo. 
211 ;  State  v.  Garlock,  14  Iowa,  444 ;  Harris  v.  Intendant,  &c,  28  Ala.  577 ; 
Robinson  v.  Mayor,  &c,  1  Humph.  156;  Pekin  v.  Smelzel,  21  111.  464;  State 
v.  Plunkett,  3  Harr.  (N.  J.)  5;  both  held  consistent  and  able  to  stand  to- 
gether. Byers  <o.  Olney,  16  111.  35;  Page  v.  State,  11  Ala.  849;  Benefield  v. 
Hines,  18  La.  An.  420;  Louisville  v.  McKean,  18  B.  Mon.  9;  Dietz  v.  City, 
1  Colorado,  323,  1871;  Burckholter  v.  McConnellsville,  20  Ohio  St.  308; 
Baldwin  Co.  v.  Liquor  Dealers,  42  Geo.  325;  State  v:  Sherman,  20  Mo.  265. 
Liquor  license  fee  held  not  a  tax,  in  the  constitutional  sense  of  the  term, 
compelling  uniformity  of  taxation.  East  St.  Louis  v.  Wehrung,  46  111.  392. 
Special  provision  of  charter  construed  not  to  give  power  to  prohibit  abso- 
lutely the  sale  of  liquor  in  the  town.     Hill  v.  Decatur,  22  Geo.  203. 

1  Commonwealth  v.  Turner,  1  Cush.  493,  1848.  The  limitations  on  such 
a  general  power  to  make  by-laws,  discussed  by  Shaw,  C.  J.  As  to  text,  see- 
Commonwealth  v.  Dow,  10  Met.  382,  1845.  General  welfare  clause  does  not 
authorize  a  municipal  corporation  to  pass  an  ordinance  prohibiting  the 
retail  of  intoxicating  liquors,  when  this  is  repugnant  to  the  state  laws  on 
the  subject.  Ex  parte  Burnett,  30  Ala.  461,  1857.  But  under  a  different 
state  of  general  legislation,  see  State  v.  Clark,  8  Foster  (N.  H.)  176,  1854; 
Heisembrittle  v.  City  of  Charleston,  2  McMullen  (South  Car.)  233 :  State  v. 
Ferguson,  22  N.  H.  424,  1851 ;  distinguished  from  and  commenting  on  the 
above  cases.  State  v.  Freeman,  38  N.  H.  426,  approving  and  following, 
State  v.  Clark,  8  Fost.  176;  Megowan  v.  Commonwealth,  2  Met.  (Ky.)  3> 
1859. 


Cn.  XII. ]  RELATING     TO     PUBLIC     OFFENCES.  399 

spirituous  liquors    in    their    shops,    or    in    any  adjacent 
room.1 

A  corporation  whose  charter  contained  the  general  wel 
fare  clause,  and  also  specific  power  fc'to  license  persons  to 
retail  spirituous  liquors,  and  to  prohibit  persons  from  sell- 
ing without  such  license,1'  and  was,  it  seems,  silent  as  to  the 
amount  which  might  be  demanded  for  a  license,  was  ad- 
judged competent  to  enact  an  ordinance  demanding  $500  as 
the  fee  for  a  retail  license.2 

Power  by  its  charter  to  a  city  "  to  tax,  or  entirely  sup- 
press, all  petty  groceries,"  was  held,  in  connection  with 
other  provisions  of  the  charter  expressly  authorizing  certain 
other  subjects  to  be  licensed,  not  to  confer  upon  the  corpo- 
ration the  power  to  grant  licenses  for  retailing  vinous  liquors, 
and  to  demand  a  sum  of  money  therefor. 3 

Ordinances  Relating  to  Public  Offences. 

§  300.  Distinction  Between  Laws  and  By-Laws — Con- 
current  Prohibitions,  &c. — Statute   law  and  by-laws  are 

1  Heisembrittle  v.  City  Council,  2  McMullen  (South  Car.),  Law,  233,  1842. 
Followed  and  affirmed:  City  Council  v.  Ahrens,  4  Strob.  (South  Car.)  Law, 
241,  1850.  See  City  Council  v.  Baptist  Church  (giving  preamble  to  charter 
in  question),  lb.  306,  308.  A  town  had  exclusive  authority  over  the  sale  of 
liquors  therein,  and  it  was  held  that  power  to  "regulate,  restrain,  and  sup- 
press shops  and  places  for  the  sale  of  ardent  spirits  by  retail,"  amounted  to 
an  authority  to  forbid  the  sale ;  for  if  there  is  a  sale  it  must  be  made  in 
some  shop  or  place.  Clintonville  v.  Keeting,  4  Denio,  341,  1847;  Thomas  v. 
Mt.  Vernon,  9  Ohio,  290.  Construction  of  charter  provisions,  holding  that 
the  sale  of  intoxicating  liquors  might  be  declared  a  nuisance  by  the  muni- 
cipal authorities.  Block  v.  Jacksonville,  36  111.  301  ;  Goddard  v.  Same,  15 
Tb.  588;  Byers  v.  Trustees,  &c,  16  lb.  35;  Pekin  v.  Smelzel,  21  lb.  464. 

2  Perdue  v.  Ellis.  19  Geo.  586,  1855.  But  see  Ex  parte  Burnett,  30  Ala. 
461,  and  compare  that  with  Intendant  v.  Chandler,  6  Ala.  899.  See  also  St. 
Louis  v.  Smith,  2  Mo.  113;  where  there  was  charter  power  to  "restrain  and 
prohibit  tippling  houses,"  and  the  corporation  was  held  entitled  to  impose 
a  license  fee.  Power  to  "tax"  and  "restrain"  sale  of  liquor  includes 
power  to  grant  licenses.     Mt.  Carincl  v.  Wabash  County,  50  111.  69,  1869. 

'  Leonard  v.  Cant -m,  35  Miss.  (6  Geo.)  189,1858.  Power  "  to  prohibit 
tippling  houses,"  does  not  authorize  an  ordinance  prohibiting  sales  of  beer 
by  brewers.  Strauss  v.  Pontiac,  40  111.  301,  1866.  Prohibition  in  ordinance 
to  sell  liquors  without  license,  held  not  to  apply  to  sales  by  manufacturers, 
but  to  retail  dealers.     St.  Paul  v.  Troyer,  3  Minn.  291. 


400  MUNICIPAL    CORPORATIONS.  [Ch.  XII. 

intended  to  meet  different  wants  and  exigencies,  and  to  serve 
different  purposes.  The  former,  when  general  in  its  nature 
and  operation,  is  intended  to  furnish  a  rule  for  the  govern- 
ment of  the  people  of  the  state  everywhere.  The  latter, 
made  by  the  corporation  under  derivative  authority,  are 
local  regulations  for  the  government  of  the  inhabitants  of 
the  incorporated  place ;  and  of  course  they  must  be  void 
unless  specially  authorized  by  the  charter  or  organic  act  of 
the  corporation,  when  they  are  repugnant  to,  or  inconsistent 
with,  the  general  law  of  the  land.  No  implied  power  to 
pass  by-laws,  and  no  express  general  grant  of  the  power, 
can  authorize  a  by-law  which  conflicts  either  with  the  na- 
tional or  state  constitution,  or  with  the  statute  of  the  state, 
or  with  the  general  principles  of  the  common  law  adopted 
or  in  force  in  the  state. 

§  301.  The  laws  of  the  state  operate  within  the  limits  of 
municipal  corporations  and  upon  their  inhabitants  the  same 
as  elsewhere,  unless  it  is  otherwise  clearly  provided  in  the 
charter,  or  by  some  statute  of  the  state ;  and  unless  so  pro- 
vided, in  case  of  conflict  between  laws  and  by-laws,  the 
latter  must  give  way.  But  the  state  may,  and  as  to  local 
matters  frequently  does,  except  municipal  corporations 
from  the  operation  of  its  laws,  and  either  provides  a  special 
law  for  them  or  authorizes  them  to  provide  special  regula- 
tions for  themselves  ;  and  when  this  is  done  there  is  no  con- 
flict. But  these  local  laws  and  regulations  are  at  all  times 
subject  to  the  paramount  authority  of  the  legislature. 
Questions  of  difficulty  have  arisen  in  consequence  of  grants 
of  power  to  municipal  corporations  to  make  ordinances  re- 
specting matters  and  acts  already  regulated  by  general 
statute,  and  if  criminal  in  their  nature,  punishable  under 
the  laws  of  the  state.  Hence,  the  same  act  comes  to  be  for- 
bidden by  general  statute,  and  by  the  ordinance  of  a  muni- 
cipal corporation,  each  providing  a  separate  and  different 
punishment.  The  same  transaction  may,  if  complex  in  its 
nature,  be  in  one  part  of  it  an  offence  against  the  general 
law,  and  in  another  against  the  by-law,  but  such  cases  pre- 
sent no  difficulty.  But  can  the  same  act  be  twice  punished, 
once  under  the  ordinance  and  once  under  the  statute?  The 
cases  on  this  subject  cannot  be  reconciled.     Some  hold  that 


Ch.  XII.]  RELATING     TO     PUBLIC     OFFENCES.  *01 

the  same  act  may  be  a  double  offence,  one  against  the  state 
and  one  against  the  corporation.  Others  regard  the  same 
act  as  constituting  a  single  offence,  and  hold  that  it  can  be 
punished  but  once,  and  may  be  thus  punished  by  which- 
ever party  first  acquires  jurisdiction. 

§  302.  In  view  of  the  somewhat  strict  construction  of 
grants  of  corporate  powers,  elsewhere  explained  and  illus- 
trated, and  of  the  subordinate  nature  and  purposes  of  by- 
laws, the  following  rules,  although  seeming  to  rest  on  sound 
principles,  are,  in  view  of  the  decisions,  stated  with  some 
distrust  of  their  entire  correctness  :  I.  A.  general  grant  of 
power,  such  as  mere  authority  to  make  by-laws,  or  au- 
thority to  make  by-laws  for  the  good  government  of  the 
place,  and  the  like,  should  not  be  held  to  confer  authority 
upon  the  corporation  to  make  an  ordinance  punishing  an 
act — for  example,  an  assault  and  battery — which  is  made 
punishable  as  a  criminal  offence  by  the  laws  of  the  State. 
The  intention  of  the  State  that  the  general  laws  shall  not 
extend  to  the  inhabitants  of  municipal  corporations,  or  that 
these  corporations  shall  have  the  power,  by  ordinance,  to 
supersede  the  State  law,  will  not  be  inferred  from  grants  of 
power  general  in  their  character ;  nor  will  such  authority  in 
the  corporation  be  held  to  exist  as  an  implied  or  incidental 
right.  IX  Where  the  act  is,  in  its  nature,  one  which  con- 
stitutes two  offences,  one  against  the  State  and  one  against 
the  municipal  government,  the  latter  may  be  constitu- 
tionally authorized  to  punish  it,  though  it  be  also  an  offence 
under  the  State  law  ;  but  the  legislative  intention  that  this 
may  be  done  should  be  manifest  and  unmistakable,  or  the 
power  in  the  corporation  should  be  held  not  to  exist. 
III.  Where  the  act  or  matter,  covered  by  the  charter  or 
ordinance,  and  by  the  State  law,  is  not,  essentially,  criminal 
in  its  nature,  and  is  one  which  is  generally  confided  to  the 
supervision  and  control  of  the  local  government  of  cities  and 
town&,  but  is  also  of  a  nature  to  require  general  legislation, 
the  intention  that  the  municipal  government  should  have 
power  to  make  new,  further,  and  more  definite  regulations, 
and  enforce  them  by  appropriate  penalties,  will  be  inferred 
from  language  which  would  not  be  sufficient  were  the 
matter  one  not  specially  relating  to  corporate  duties,  and 
26 


402  MUNICIPAL     CORPORATIONS.  [Ch.  XII. 

fully  provided  for  by  the  general  laws.  Such  are  the 
general  principles  to  be  extracted  from  the  authorities,  but 
the  exact  state  of  the  law  will  more  satisfactorily  appear, 
and,  indeed,  can  only  be  seen  by  reference  to  the  adju- 
dicated cases  ;  accordingly,  the  leading  ones  upon  the  sub- 
ject are  stated  in  the  note,1  and  in  some  of  its  aspects  the 

1  Ex  parte  Smith,  Hempstead,  201,  1832 ;  Mayor,  &c.  of  Savannah  v. 
Hussey,  21  Geo.  80,  1857;  New  Orleans  v.  Miller,  7  La.  An.  651,  1852; 
Municipality  v.  Wilson,  5  lb.  747;  State  v.  Cowan,  29  Mo.  330  (furious 
driving) ;  St.  Louis  v.  Cafferata,  24  Mo.  94  (Sunday  ordinances) ;  Amboy  v. 
Sleeper,  31  111.  499;  State*.  Ledford,  3  Mo.  102;  Independence  v.  Moore, 
32  Mo.  392;  McLaughlin  v.  Stevens,  2  Cranch  C.  C.  R.  148;  St.  Louis  v. 
Bentz,  11  Mo.  61  (ordinance  against  vagrants);  United  States  v.  Holly,  3 
Cranch  C.  C.  R.  656;  Jefferson  City  v  Courtmire,  9  Mo.  683  (ordinance 
against  riots) ;  Davis  v.  State,  4  Stew.  &  Port.  (Ala.),  83;  State  v.  Plunkett, 
3  Harrison  (N.  J.),  5,  1840;  Rice  v.  State,  3  Kansas,  141,  1865;  Rogers  v. 
Jones,  1  Wend.  261 ;  Mayor,  &c.  of  New  York  v.  Hyatt,  3  E.  D.  Smith,  156; 
Borough  of  York  v.  Forscht,  23  Pa.  St.  391 ;  March  v.  Commonwealth,  12 
B.  Mon.  25 ;  Commissioners  v.  Harris,  7  Jones  (Law)  281 ;  Brooklyn  v.  Toyn- 
bee,  31  Barb.  282;  Davenport  v.  Bird,  34  Iowa,  Dec.  Term,  1871;  Zylstra  v. 
Charleston,  2  Bay  (South  Car.),  382;  Petersburg  v.  Metzker,  21  111.  205, 
1859;  Barter  v.  Commonwealth,  3  Pa.  253;  State  v.  Clark,  1  Dutch.  (N.  J.) 
54;  State  v.  Pollard,  6  Rh.  Is.  290;  People  v.  Jackson,  8  Mich.  110. 

Treating  of  the  constitutional  question  involved,  Mr.  Justice  Gooley  re- 
marks, that  although  the  decisions  are  not  uniform,  the  clear  weight  of 
authority  is,  "  that  the  same  act  may  constitute  an  offence  both  against  the 
state  and  the  municipal  corporation,  and  both  may  punish  it  without  viola- 
tion of  any  constitutional  principle."  Const.  Lim.  199;  S.  P.  March  v.  Com- 
monwealth, 12  B.  Mon.  25,  29,  per  Simpson,  C.  J.  In  England  a  by-law  im- 
posing a  penalty  on  a  corporator,  for  refusing  to  serve  in  a  corporate  office, 
is  valid,  notwithstanding  the  party  may  be  indicted  for  the  same  refusal,  as 
he  may  be  in  all  cases  of  municipal  offices  necessary  or  proper  to  carry  on 
the  government  of  the  corporation.  Grant  on  Corp.  82.  A  distinction  wa9 
there  early  made  between  grave  offences  classified  as  pleas  of  the  crown  and 
triable  upon  an  issue  of  not  guilty  between  the  king  and  the  defendant,  and 
lesser  or  petty  offences  punishable  by  fine  or  amerciament  upon  presentment 
in  court  leet,  or  inferior  jurisdictions.  See  Hale  P.  C.  vol.  I.  chap.  LII. ; 
vol.  H.  chap.  XIX.     Norton's  Com.  London,  370,  453. 

In  Georgia  the  general  welfare  clause  in  a  charter  was  decided  not  to 
authorize  the  passage  of  an  ordinance  prescribing  a  different  mode  of  trial 
and  punishment  in  addition  to  that  provided  for  by  the  general  criminal 
code  of  the  state,  for  harboring  and  enticing  seamen.  Savannah  v.  Hussey, 
21  Geo.  80,  1857.  The  power  of  municipal  corporations  to  legislate  respecting 
offences  fully  covered  by  the  state  law  is  denied,  and  the  general  subject  is 
largely  and  satisfactorily  discussed,  and  it  is  well  remarked  that,  in  such 
cases,  "  the  law  of  the  state  is  the  law  of  the  corporation ;  and  they  cannot 


Ch.  XII.  ]  RELATING     TO     PUBLIC     OFFENCES.  403 

matter  is  further  considered  in  the  chapter  on  Municipal 
Courts. 

make  another  law  for  themselves."  The  following  is  extracted  from  the 
opinion  delivered  by  a  very  able  judge: — "Under  the  general  grant  of 
power  (to  pass  all  such  ordinances  as  may  seem  necessary  for  the  security, 
welfare,  &c.  of  the  city)  the  city  authorities  may  cover  all  [proper]  cases  not 
provided  for  by  the  paramount  authorities  of  the  state.  All  those  ordi- 
nances regulating  cemeteries,  commons,  markets,  vehicles,  fires,  exhibi- 
tions, lamps,  licenses,  water  works,  watch,  police,  city  taxes,  city  officers, 
health,  nuisances,  &c,  are  legitimate  and  proper.  Nay,  I  might  go  further, 
and  concede  that  where  a  state  law  defines  an  offence  generally,  and  pre- 
scribes a  punishment  without  reference  to  the  place  where  it  is  committed, 
in  town  or  country,  and  the  act,  when  committed  in  the  streets  and  public 
places  of  the  city,  would  be  attended  with  circumstances  of  aggravation, 
such  as  an  affray,  for  instance,  the  corporate  authorities,  with  a  view  to 
suppress  this  special  mischief,  might  probably  provide  against  it  by  ordi- 
nance. But  this  is  going  quite  far  enough."  But  I  deny  that  "  a  municipal 
corporation  can  legislate  criminaliter  upon  a  case  fully  covered  by  the  state 
law,  though  aware  that  decisions  may  be  found  to  support"  that  view. 
Per  Lumplin,  J.,  in  Savannah  v.  Hussey,  21  Geo.  80.  86,  1857.  And  it  is  set- 
tled in  Georgia,  that  where  an  act  amounts  to  an  indictable  offence  it  can- 
not be  punished  under  municipal  ordinances,  but  the  offender  must  be 
bound  over  to  the  proper  court;  if  it  does  not  amount  to  an  indictable 
offence  the  offender  may  be  punished  under  the  ordinances  of  the  munici- 
pality, and  if  it  is  a  nuisance,  steps  may  also  be  taken  to  have  it  abated. 
Vason  v.  Augusta,  38  Geo.  542,  1868. 

But  in  Alabama  it  is  held  that  a  municipal  corporation,  with  power  t:> 
enact  ordinances  "  for  the  good  government  of  the  place,  not  contravening  the 
laws  of  the  state,"  may  pass  an  ordinance  imposing  a  fine  for  an  assault  and 
battery  within  its  limits,  and  a  punishment  under  the  state  law  for  the 
same  act  is  no  bar  to  a  prosecution  under  the  ordinance.  Collier,  C.  J.,  de- 
livering the  opinion  of  the  court,  says:  ''The  object  of  the  power  con- 
ferred by  the  charter,  and  the  purpose  of  the  ordinance  itself,  was  not  to 
punish  an  offence  against  the  criminal  justice  of  the  country,  but  to  provide 
a  mere  poUce  regulation  for  the  enforcement  of  good  order  and  quiet  within 
the  limits  of  the  corporation.  *  *  The  offence3  against  the  corporation 
and  the  state  are  distinguishable  and  wholly  disconnected,  and  the  prosecu- 
tion at  the  suit  of  each  proceeds  upon  a  different  hypothesis — the  one  con- 
templates the  observance  of  the  peace  and  good  order  of  the  city;  the  other 
has  a  more  enlarged  object  in  view — the  maintenance  of  the  peace  and 
dignity  of  the  state."  Mayor,  &c.  of  Mobile  v.  Allaire,  14  Ala.  400,  1848. 
If  the  principle  stated  in  the  text  be  correct,  the  soundness  of  this  decision 
under  the  powers  conferred  upon  the  corporation  may  admit  of  doubt,  but 
the  same  viewr  had  been  previously  taken  in  the  same  court  in  The  Mayor, 
&c.  of  Mobile  v.  Rouse  (liquor  law),  8  Ala.  515.  1845.  And  see  .Moore  v. 
State,  16  Ala.  411  ;  Greensboro  v.  Mullins,  I'd  Ala.  34 1.  Extent  of  police 
power.     Shai'cr  t  Mumma,  IT  Ml.  331.     Ante,  sees.  513,  95,  291,  293. 


404  MUNICIPAL    CORPORATIONS.  [Ch.  XII. 

Ordinances  Relating  to  the  Public  Health,  Safety,  and 
Convenience. 

§  303.  Health  Ordinances — Hospitals  and  Burials. — 
Our  municipal  corporations  are  usually  invested  with  power 

Authority  to  pass  ordinances  "  to  preserve  the  health  and  couifort  of  the 
town,"  does  not  empower  the  corporation  to  pass  an  ordinance  to  prevent 
or  punish  breaches  of  the  peace.  Raleigh  v.  Dougherty,  3  Humph.  (Tenn.) 
11,  1842.  See  chapter  on  Municipal  Courts,  post.  Where  gambling  and  the 
keeping  of  gambling  houses  are  made  public  offences  by  the  state  laws,  offend- 
ers may  be  prosecuted  in  the  state  courts  for  the  violation  of  these  laws, 
notwithstanding  the  organic  acts  of  cities  may  give  to  the  city  council  power 
"  to  restrain,  prohibit,  and  suppress  games  and  gambling  houses. "  In  thus 
holding,  the  court  adds,  "It  is  not  necessary,  in  this  case,  to  decide 
whether  both  the  state  and  the  city  can  punish  for  the  same  act;  bur  we 
have  no  doubt  that  the  one  which  shall  first  obtain  jurisdiction  of  the  per- 
son of  the  accused  may  punish  to  the  extent  of  its  power."  Rice  v.  State, 
3  Kansas,  141,  1865.  The  same  point  has  been  decided  the  same  way  in  a 
late  case  by  the  Supreme  Court  of  Minnesota.  State  v.  Crummey,  17  Minn. 
72,  1871.  Gambling  being  punishable  under  the  general  law,  a  city  coun- 
cil "invested  with  authority  to  make  ordinances  to  secure  the  inhabitants 
against  fire,  against  violations  of  the  law  and  the  public  peace,  to  suppress 
riots,  gambling,  drunkenness,  indecent  and  disorderly  conduct,  to  punish 
lewd  behavior  in  public  places,  *  *  and,  generally,  to  provide  for  the 
safety,  prosperity,  and  good  order  of  the  city,"  possesses,  by  virtue  thereof, 
no  power  to  make  the  keeping  of  any  gambling  device  a  misdemeanor,  and 
to  punish  the  same.     Mount  Pleasant  v.  Breeze,  11  Iowa,  399,  1860. 

In  Missouri  it  is  held  that  where  the  same  act  (as,  for  example,  furious 
driving  in  highways  and  public  places)  is  a  violation  of  a  valid  municipal 
ordinance  and  of  the  general  criminal  statutes  of  the  state,  the  offender  can 
be  punished  but  once,  and  hence,  to  an  indictment  in  the  state  court,  he 
may  plead  a  former  conviction  under  the  ordinance  of  the  municipal  cor- 
poration. State  v.  Cowan,  29  Mo.  330,  1860.  But  qucere.  The  opinion  in 
this  case  assumes,  without  discussion,  that  the  offense  is  single,     lb. 

In  Slaughter  t>.  People,  2  Doug.  (Mich.)  334,  the  principle  was  decided 
that  it  was  not  competent  to  punish,  under  a  city  ordinance,  an  act  which 
was  indictable.  Illustrating  the  difference  between  prosecutions  under 
special  penal  provisions  of  a  city  charter,  of  acts  with  specified  fines  and 
penalties  affixed  by  the  charter,  but  which  acts  are  breaches  of  the  law  of 
the  state  wherever  committed,  and  ordinary  prosecutions  under  municipal 
ordinances,  see  Wayne  County  v.  Detroit,  17  Mich.  390,  1868 ;  People  v. 
Detroit,  18  Mich.  445,  1869;  People  v.  Jackson,  8  Mich.  110.  Post,  chap. 
XIII. 

In  Indiana  it  was  first  held,  that  where  the  act  complained  of  is  indicta- 
ble as  a  criminal  offence  against  the  laws  of  the  state,  a  person  could  not  be 
punished  for  such  act  under  or  by  virtue  of  the  ordinances  of  a  city.     City 


Ch.  XII.  J  RELATING     TO    PUBLIC     HEALTH,     &c.  405 

to  preserve  the  health  and  safety  of  the  inhabitants.  This 
is,  indeed,  one  of  the  chief  purposes  of  local  government, 
and  reasonable  by-laws  in  relation  thereto  have  always 
been  sustained  in  England  as  within  the  incidental  au- 
thority of  corporations  to  ordain.  It  will  be  useful  to  illus- 
trate the  subject  by  reference  to  some  of  the  adjudged  cases.1 
An  ordinance  of  a  city  prohibiting,  under  a  penalty,  any 
person,  not  duly  licensed  therefor  by  the  city  authorities, 
from  "removing  or  carrying  through  an}7  of  the  streets  of 
the  city  any  house  dirt,  refuse,  offal,  or  filth,"  is  not  im- 
properly in  restraint  of  trade,  and  is  reasonable  and  valid. 
Such  a  by-law  is  not  in  the  nature  of  a  monopoly,  but  is 
founded  upon  a  wise  regard  for  the  public  health.  It  was 
contended  that  the  city  could  regulate  the  number  and 
kind  of  horses  and  carts  to  be  employed  by  strangers  or 
unlicensed  persons  as  well  as  they  could  those  of  licensed 
persons.  But  practically  it  was  considered  that  the  main 
object  of  the  city  could  be  better  accomplished  by  employ- 
ing men  over  whom  they  have  entire  control,  night  and  day, 
who  are  at  hand,  and  able  from  habit  to  do  the  work  in  the 
best  way  and  at  the  proper  time.* 

Council  of  Indianapolis  v.  Blythe,  2  Ind.  (Carter)  75,  1850.  In  this  case  the 
city,  unsuccessfully,  sought  to  recover  a  penalty  prescribed  by  ordinance 
for  an  assult  and  battery  committed  by  the  defendant  within  the  city. 
Same  principle,  City  of  Madison  v.  Hatcher,  8  Blackf.  341,  1846.  But  these 
cases  were  overruled  by  Ambrose  v.  State,  6  Ind.  351,  in  which  it  was  held 
that  a  single  act  might  constitute  two  offences,  one  against  the  state  and 
one  against  the  municipal  government,  and  "that  each  might  punish  in  its 
own  mode,  oy  its  own  officers,  the  same  act  as  an  offense  against  each.'' 
Perl-ins,  J.,  in  Waldo  v.  Wallace,  12  Ind.  582,  1859,  where  prior  cases  in  that 
state  are  referred  to.  See,  also,  Lawrenceburg  v.  West,  16  Ind.  337 ;  Fox 
v.  State,  5  How.  410;  Moore  v.  People,  14  How.  13. 

In  Louisiana,  municipal  corporations  are  held  to  have  no  power  to  im 
pose  a  penalty  on  that  which  is  made  punishable  as  a  criminal  offense  by 
the  laws  of  the  state.  But  it  is  admitted  that  there  is  a  class  of  offenses 
against  public  order  not  made  punishable  by  the  state  law,  which  it  is  with 
in  the  power  of  such  corporation  to  suppress.  New  Orleans  v.  Miller.  T  La. 
An.  651,  1852;  Municipality  v.  Wilson,  5  11.  747.  This  cases  seems  to  con- 
cede that  the  city  corporation  cannot  punish  for  an  act  identical  with  that 
punished  by  the  state  law.  See,  also,  Commissioners  v.  Harris,  7  Jones 
(Law)  281 ;  People  v.  Jackson,  8  Mich.  110. 

1  Ante,  chap.  VI.    sec.  95. 

s  Vandine,  petitioner,  6   Pick.    187,    1828;  commented  on  in  Common- 


406  MUNICIPAL     CORPORATIONS.  [uh.  XII. 

§  304.  Authority  by  charter  to  pass  ordinances  respect- 
ing the  harbors  and  wharves,  and  "every  other  by-law 
necessary  for  the  security,  welfare,  and  convenience  of  the 
city,"  gives  to  the  city  council  power  to  pass  a  health 
ordinance,  requiring  boats  coming  from  infected  places  to 
anchor  before  landing,  and  to  submit  to  an  examination, 
provided  such  ordinance  be  not  repugnant  to  the  general 
law  of  the  state.  And  it  was  further  held,  that  a  general 
law  of  the  state  prohibiting  "any  person  coming  into  the 
state  from  an  infected  place,  and  in  violation  of  quarantine 
regulations,"  was  not  repugnant  to  and  did  not  render  the 
ordinance  invalid.1 

§  305.  Hospitals.  —  Authority  to  the  corporation  of  New 
Orleans  "to  pass  such  by-laws  as  they  shall  deem  neces- 
sary to  maintain  the  cleanliness  and  salubrity  of  the  city," 
was  considered,  in  view  of  its  extensive  nature,  certain  pro- 
visions of  the  civil  code,  and  the  liability  of  the  city  to 
epidemics,  as  conferring  power  upon  the  city  council  to 
prohibit  the  erection  and  maintenance  of  private  hospitals  ; 
the  court  admitting  that  the  same  question  had  been  de- 
cided otherwise  by  tribunals  governed  by  the  common  law 
jurisprudence.2 

wealth  v.  Stodder,  2  Cush.  562,  575,  576,  1848.  In  Zylstra  v.  Corporation 
of  Charleston,  1  Bay  (South  Car.)  382,  1794,  Mr.  Justice  Waties  (one  of 
the  most  accomplished  of  early  American  judges),  speaking  of  an  ordinance 
prohibiting  the  making  of  soap  or  candles  contrary  to  the  mode  prescribed 
and  within  the  limits  of  the  city,  says:  "I  am  willing  to  admit  that  the 
by-law  itself  is  a  valid  one.  If  it  restrained  an  inoffensive  trade  it  would 
not  be  so ;  but  it  is  made  to  restrain  one  that  is  both  offensive  and  danger- 
ous. It  is,  therefore,  calculated  to  guard  the  comfort  and  safety  of  the 
citizens  ;  and  the  benefit  of  a  by-law  is,  generally,  the  touch-stone  of  its 
validity. " 

Power  to  a  city  council  to  compel  the  owners  and  occupants  of  slaughter- 
houses to  cleanse  and  abate  them  whenever  necessary  for  the  health  of  the 
inhabitants,  was  considered  not  to  authorize  an  ordinance  entirely  prohib- 
iting the  slaughtering  of  animals  within  certain  limits  of  the  city.  Wre- 
ford  v.  People,  14  Mich.  41,  1865;  see  Metropolitan  Board  of  Health,  37 
N.  Y.  661;  Shrader,  Ex  parte,  33  Cal.  279,  1867.  Powers  with  respect  to 
jrrixies.     Gregory  v.  Railroad  Company,  40  N.  Y.  273. 

1  Dubois  v.  Augusta,  Dudley  (Geo.)  30,  1831.     Ante,  sec.  95. 

9  Milne  v.  Davidson,  5  Martin  (La.),  410,  1827. 

As  to  city  hospitals,  see  Vionet  v.  Municipality,  4  La.  An.  42;  Bozant  v. 


Ch.  XII.  j  RELATING    TO     PUBLIC     HEALTH,     &c  407 

§  306.  Cemeteries  and  Burials. — The  public  health, 
comfort,  and  convenience  are  concerned  in  the  proper  regu- 
lation of  burials  ;  and  the  evils  resulting  from  its  neglect 
are  especially  to  be  apprehended  in  the  crowded  popula- 
tions of  cities.  Power  to  regulate  this  matter  may  properly 
be  conferred  upon  municipal  corporations.  And  such 
power  will  be  held  to  be  given  by  authority  to  make  police 
regulations  or  to  pass  by-laws  respecting  the  health,  go<  >d 
government,  and  welfare  of  the  place.1     Power  to  city  cor- 

Campbell,  9  Rob.  (La.)  411;  City  Council  v.  Boyd,  1  Const.  Rep.  A.  D.  1817 
(South  Car.)  352;  Tucker®.  Virginia  City,  4  Nev.  20.  Municipal  corpora- 
tion may  found  hospitals  for  the  poor  under  39  Eliz.  chap.  V.  In  re  New- 
castle, 12  Clark  &  Fin.  402. 

Quarantine  ordinances  of  a  municipal  corporation,  passed  by  virtue  of  a 
grant  of  power  from  the  state,  whereby  passenger  vessels  are  required  to 
remain  in  quarantine  for  a  specified  period,  are  not  repugnant  to  the  com- 
merce clause  of  the  federal  constitution.  St.  Louis  v.  McCoy,  18  Mo.  238, 
1853;  S.  P.  St.  Louis  v.  Boffinger,  19  lb.  13;  Metcalf  ».  St.  Louis,  11  lb.  103. 
In  modern  usage,  quarantine  is  not  confined  to  vessels  having  on  board  the 
plague,  but  extends  to  vessels  having  on  board  other  contagious  diseases. 
Per  Tenney,  C.  J.,  Mitchell  v.  Rockland,  41  Maine,  363,  1856;  S.  C.  again, 
45  Maine,  496,  1858;  ante,  sec.  95. 

Boards  of  Health. — An  ordinance  creating  and  giving  to  the  board  of 
health  "general  supervision  over  the  health  of  the  city,"  and  "  all  necessary 
power  to  carry  the  ordinance  into  effect,"  was  considered  to  include  the 
power  to  rent  a  building  for  a  temporary  hospital,  to  protect  the  city  from 
an  apprehended  visitation  of  the  cholera,  and  to  make  the  corporation 
liable  for  the  rent,  although  it  did  not  become  necessary  to  use  the  house. 
Aull  v.  Lexington,  18  Mo.  401,  1853.  Power  of  board  of  health  to  bind  corpo- 
ration. Frend  v.  Dennett,  4  C.  B.  (N.  S.)  576;  Barton  v.  New  Orleans,  16  La. 
An.  317;  Belcher  v.  Farrar,  8  Allen,  325;  Hazen  v.  Strong,  2  Vt.  427;  Com- 
missioners v.  Powe,  6  Jones  (Law)  134;  Wilkinson  v.  Albany,  8  Fost.  9. 
Regularly,  the  orders  of  a  board  of  health,  directing  the  abatement  of  a 
nuisance,  should  be  in  writing.  Such  orders  may  be  proved  by  the  minutes 
of  the  board,  by  the  written  orders  themselves,  or  by  being  recited  in  the 
proceedings  of  the  corporation  of  which  the  board  of  health  are  members. 
How  far  parol  evidence  may  be  received  of  such  orders,  when  it  appears  that 
no  record  or  written  evidence  ever  existed,  is  not  free  from  doubt.  Meeker 
v.  Van  Rensselaer,  15  Wend.  397,  1836,  where  parol  evidence  of  this  kind 
was  held  inadmissible  by  the  Supreme  Court.  But  see,  in  Court  of  Errors, 
Van  Wormerfl.  Mayor,  18  Wend.  169;  affirming  S.  C.,15  Wend.  263.  See, 
also,  People  v.  Adams,  9  Wend.  333 ;  6  lb.  651 ;  ante,  chap.  XI. 

1  Bogert  v.  Indianapolis,  13  Ind.  134,  1859,  per  PerMns,  J.;  Mayor,  &c.  of 
New  York  v.  Slack,  3  Wheel.  Cr.  Cas.  237,  1824;  Presbyterian  Church  v. 
Mayor,   &c.   of  New  York,  5  Cow.  538,  1826 ;  Coates  v.  Same,  7  Cow.  582, 


408 


MUNICIPAL     CORPORATIONS. 


[Ch.  XII. 


poration,  after  enumerating  various  objects,  "in  general 
to  pass  every  other  by-law  that  to  it  shall  seem  requisite  and 
necessary  for  the  security,  welfare,  and  convenience  of  the 
city,"  &c,  was,  by  the  Court  of  Appeals  of  South  Carolina, 
considered  to  give  authority  to  regulate  the  burial  of  the 
dead,  and  particularly  to  prevent  the  establishment  oi  new 
burial  grounds  within  the  limits  of  the  city,  and,  in  the 
opinion  of  the  organ  of  the  court,  also  to  regulate  the  time 
of  burial,  the  manner  of  interment  so  as  to  prevent  noxious 
effluvia,  and  to  prohibit  interments  in  the  private  gardens, 
yards,  and  by -places  of  the  city.1  But  as  every  by-law 
must  be  reasonable,  an  arbitrary  or  unnecessary  or  oppres- 
sive restraint  upon  the  right  of  burying  the  dead  is  invalid.3 

§  307.  Where  the  burden  to  support  a  public  cemetery 
is  required  to  be  borne  by  all  the  citizens,  an  ordinance 
throwing  that  burden  upon  a  particular  class  is  unreason- 
able and  void.3    Cemeteries  in  cities  are  not  per  se  nuisances, 

1827;  Austin  v.  Murray,  16  Pick.  121,  1834;  Commonwealths  Fahey,  5 
Cush.  408,  1850;  New  Orleans  v.  St.  Louis  Church,  11  La.  An.  244,  1856; 
distinguished  from  Presbyterian  Church  v.  Mayor,  &c.  of  New  York,  supra  ; 
Commonwealth  v.  Goodrich,  13  Allen,  546.  The  power  of  disinterment  may 
be  delegated  by  the  legislature  to  municipalities.  Kincaid's  Appeal,  66  Pa. 
St.  411,  1870. 

1  City  Council  v.  Baptist  Church,  4  Strob.  (South  Car.)  Law,  306,  309, 
1850,  per  Frost,  J. ;  S.  P.  Bogert  v.  Indianapolis,  13  Ind.  134,  per  Perkins, 
J. ;  New  Orleans  v.  St.  Louis  Church,  11  La.  An.  244;  distinguished  from  5 
Cowen,  538,  supra  ;  Musgrove  v.  Catholic  Church,  10  La.  An.  431. 

1  Austin  v.  Murray,  16  Pick.  121,  1834;  Coates  v.  Mayor,  &c.  of  New 
York,  7  Cow.  585;  Commonwealth  v.  Fahey,  5  Cush.  408,  1850. 

The  law  of  burials,  in  some  of  its  relations  to  property  and  municipal 
rights,  was  ably  considered  by  the  Horn  Samuel  B.  Ruggles,  referee,  in  the 
matter  of  the  opening  of  Beehrnan  street,  in  New  York  City,  whose  report 
establishing  the  following  principles  was  confirmed  by  the  Supreme  Court: 
1.  In  this  country,  corpses  and  their  burials  are  not  matters  of  ecclesiastical 
cognizance.  2.  That  the  right  to  bury  a  corpse  and  preserve  its  remains  is 
a  legal  right,  belonging,  in  the  absence  of  testamentary  disposition,  exclu- 
sively to  the  next  of  kin,  and  includes  the  right  to  select  and  change  the 
place  of  sepulture  at  pleasure.  3.  If  place  of  burial  is  taken  for  public  use 
the  next  of  kin  may  claim  indemnity  for  expense  of  removing  and  suitably 
re-interring  their  remains.  Matter  of  Beekman  street,  4  Bradf.  (N.  Y.)  503, 
532,  1856;  Bogert  v.  City  of  Indianapolis,  13  Ind.  134,  1859,  per  Perkins,  J 
See,  also,  Matter  of  Brick  Church,  3  Edw.  Ch.  Rep.  (N.  Y.)  155. 

8  Beurnjohn  v.  Mayor,  &c.  27  Ala.  58,  1855. 


Ch.  Xn.]  RELATING     TO     PUBLIC     HEALTH,     &c.  409 

but  special  circumstances  may  make  them  so.  It  is  not, 
however,  sufficient  that  they  affect  the  market  value  of 
property  in  the  vicinity.1  A  city  corporation  had  power, 
by  charter,  "  to  establish  cemeteries  or  burial  places  within 
or  without  the  city."  It  was  held  that  this  would  author- 
ize the  city  to  establish  cemeteries  of  its  own,  and  regulate 
them  ;  but  that  it  did  not  empower  the  council  to  subject  to 
the  control  of  the  city  sexton  cemeteries  other  than  those 
belonging  to  the  city,  nor  to  pass  an  ordinance  prohibiting 
lot  owners  in  private  cemeteries,  though  within  the  city 
limits,  from  entering  to  bury  without  the  permission  of  the 
city  sexton,  to  be  obtained  only  by  paying  him  the  price  of 
digging  a  grave.2 

§  308.  Nuisances,  and  of  the  Power  to  Prevent  and 
Abate. — It  is  to  secure  and  promote  the  public  health, 
safety,  and  convenience  that  municipal  corporations  are  so 
generally  and  so  liberally  endowed  with  power  to  prevent 
and  abate  nuisances.  This  authority  may  be  constitution- 
ally conferred  on  the  incorporated  place,  and  it  authorizes 
its  council  to  act  against  that  which  comes  within  the  legal 
notion  of  a  nuisance,  but  such  power,  conferred  in  general 
terms,  cannot  be  taken  to  authorize  the  extra-judicial  con- 
demnation and  destruction  of  that  as  a  nuisance  which,  in 
its  nature,  situation,  or  use,  is  not  such.3  Speaking  upon 
this  subject  in  a  very  recent  case,  where  a  city,  under  au- 
thority to  prevent  and   restrain   encroachments   on    rivers 

1  New  Orleans  v.  St.  Louis  Church,  11  La.  An.  244,  1856;  Musgrove  v. 
Same,  10  lb.  431 ;  Lake  View  v.  Letz,  44  111.  81,  1867. 

2  Bogert  v.  Indianapolis,  13  Ind.  134,  1859. 

'Crosby  v.  Warren,  1  Rich.  (South  Car.)  385;  Roberts  v.  Ogle,  30  111. 
459;  Salem  v.  Railroad  Company,  98  Mass.  431;  Dingley  v.  Boston,  100 
Mass.  544 ;  Van  Dyke  v.  Cincinnati,  5  Disney,  532 ;  Lake  View  v.  Letz,  44 
111.  81;  Wreford  v.  People,  14  Mich.  41,  1805;  State  v.  Jersey  City,  5  Dutch. 
(N.  J.)  170.  That  which  is  authorized  by  legislative  authority  cannot  be 
declared  a  nuisance  by  a  city  corporation.  lb.  The  power  to  abate  nuis- 
ances is  a  portion  of  police  authority  necessarily  vested  in  the  corporation  ot 
all  populous  towns.  Kennedy  v.  Phelps,  10  La.  An.  227,  per  Buchanan,  J. 
May  pass  ordinances  to  prevent  as  well  as  remove.  Gregory  v.  Railroad 
Company,  40  N.  Y.  273.  A  city  held  to  have  no  power  to  destroy  a  dam 
across  a  creek  within  its  limits  as  a  nuisance.  Clark  v.  Mayor,  &c.  of  Syra- 
cuse, 13  Barb.  32. 


41  o  MUNICIPAL     CORPORATIONS.  [Ch.  XII. 

running  through  it,  commenced  summary  proceeding  to  re- 
move a  private  wharf,  an  eminent  judge  uses  this  language  : 
"But  the  mere  declaration  by  the  city  council,  that  a  cer- 
tain structure  was  an  encroachment  or  obstruction,  did  not 
make  it  so,  nor  could  such  declaration  make  it  a  nuisance 
unless  it  in  fact  had  that  character.  It  is  a  doctrine  not  to 
be  tolerated  in  this  country,  that  a  municipal  corporation, 
without  any  general  laws  either  of  the  city  or  of  the  state, 
within  which  a  given  structure  can  be  shown  to  be  a 
nuisance,  can,  by  the  mere  declaration  that  it  is  one,  sub- 
ject it  to  removal  by  any  person  supposed  to  be  aggrieved, 
or  even  by  the  city  itself.  This  would  place  every  house, 
every  business,  and  all  the  property  in  the  city,  at  the  un- 
controlled will  of  the  temporary  local  authorities."1 

1  Per  Miller,  J.,  Yates  ».  Milwaukee,  10  Wall.  497,  1870;  Underwood  v. 
Green,  42  KT.  140;  Darst  v.  People,  50  111.  286,  1869;  Millers  Burch, 
32  Texas,  209,  1869.  A  person  sick,  even  with  contagious  disease,  in  his 
own  house  or  at  a  hotel,  is  not  a  nuisance.    Boom  v.  Utica,  2  Barb.  104,  1848. 

Works  that  amount  to  a  private  nuisance,  causing  actual  damage  to  pri- 
vate persons,  cannot  be  justified,  under  a  license  from  the  city  council  to 
erect  them.  But  the  fact  of  such  license  is  evidence  of  great  but  not  con- 
clusive weight  in  favor  of  the  party  erect-ng  and  owning  the  works  claimed 
to  be  a  nuisance.  Ryan  v.  Copes,  11  Rich.  (South  Car.)  Law,  217,  1858.  A. 
pig  sty  in  a  populous  place  is,  per  se,  a  nuisance.  Commissioners  v.  Van- 
sickle.  Bright. (Pa.)  R.  69.  Livery  stable  in  a  town  is  not,  per  se,  a  nuisance, 
it  depends  upon  its  location  and  the  manner  in  which  it  is  built,  kept  or 
used.  Aldrich  v.  Howard,  7  Rh.  Is.  87;  S.  C,  8  lb.  246;  Burditt  v.  Swen- 
son,  17  Texas,  489,  1856;  Dargan  v.  Waddell,  9  Ire.  (Law)  244;  Kirkman  v. 
Handy,  11  Humph.  (Tenn.)  406;  Coker  v.  Birge,  10  Geo.  336.  Brick 
making:  Wanstead,  &c.  v.  Hill,  13  C.  B.  (N.  S.)  479.  Slaughterhouse: 
Dubois  v.  Budlong,  10  Bosw.  (N.  Y.)  700 ;  20  N.  J.  Eq.  415.  Powder  house, 
with  large  quantities  of  powder  therein,  located  in  a  city,  is  a  nuisance. 
Cheatham  v.  Shearn,  1  Swan  (Tenn.)  213,  216;  Dumesnil  v.  Dupont,  18  B. 
Mon.  800.  Planing  mill:  Rhodes  v.  Dunbar,  57  Pa.  St.  274.  As  to  gas 
works:  Cleveland  v.  Gas  Light  Co.,  20  N.  J.  Eq.  201.  Steam  flouring  mill: 
Gilbert®.  Showerman,  23  Mich.  448.  Stock  yards:  lb.  296;  Ashbrook  v. 
Commonwealth,  1  Bush  (Ky.)  139.  In  Louisiana,  where  the  civil  code  (art. 
655)  provides  that  works,  &c,  causing  annoyance  "shall  be  regulated  by 
the  rules  of  the  police  or  the  customs  of  the  place  "  where  located,  an  ordi- 
nance of  a  city  council  ordering  a  blacksmith  shop  to  be  closed,  as  a 
nuisance  is  authorized  by  law,  and  may  be  carried  into  effect  by  an  injunc- 
tion, procured  by  the  city  in  its  corporate  name,  restraining  the  owner  from 
•continuing  the  shop.     New  Orleans  v  Lambert,  14  La.  An.  247,  1859. 

Power  of  municipal  corporation  to  remove  nuisances,  and  how  far  their 


Ch.  XII.]        RELATING     TO     PUBLIC     HEALTH,     &c.  41 1 

§  309.     Power  to  municipal  corporation  to  make  "  by 
laws  relative  to  nuisances  generally,"  lias  been  decided  to 
authorize   an   ordinance   prohibiting   the   keeping,   in   any 
manner  whatsoever,  of  a  bowling  alley  for  gain  or  hire, 
such  a  place  being  a  public  nuisance  at  common  law.1     So 

decision  as  to  fact  of  nuisance  is  conclusive.  Welch  v.  Stowell,  2  Doug. 
(Mich.)  332;  Kennedy  v.  Board  of  Health,  2  Pa.  St.  366;  Commissioners  v. 
Vansickle,  Bright. (Pa.)  69;  Green  v.  Savannah,  6  Geo.  1;  Roberts  v.  Ogle, 
SO  111.  459;  Clark  v.  Mayor.  &c,  13  Barb.  32;  Saltonstall  v.  Banker,  8  Gray, 
195;  Kennedys.  Phelps,  10  La.  An.  227;  Green  v.  Underwood,  42  N.  Y. 
140;  Darst  v.  People  (intoxicating  liquors)  51  111.  286,  1869. 

Under  the  English  Municipal  Corporations  Act  the  council  of  any  bo- 
rough is  empowered  to  make  by-laws  for  the  good  rule  and  government  of 
the  borough,  and  the  prevention  and  suppression  of  nuisances  (ante,  sec.  271), 
and  it  is  held  that  this  power  respecting  the  suppression  of  nuisances  is 
confined  to  the  suppression  and  prohibition  of  acts  which,  if  done,  must 
necessarily  and  inevitably  cause  a  nuisance,  and  it  does  not  empower  the 
council  to  impose  penalties  for  the  doing  of  things  which*  may  or  may  not 
be  a  nuisance  according  to  circumstances.  Thus,  where  the  town  council 
imposed  a  fine  upon  every  person  who  should  "keep,  or  suffer  to  be  kept 
any  swine  within  the  borough,  between  the  first  of  May  and  the  first  of  Oc- 
tober/'it  was  held  that  the  by-law  was  wholly  invalid,  as  the  keeping  of  a 
pig  did  not  necessarily  create  a  nuisance.  Addison  on  Torts,  34,  citing, 
Everett  v.  Grapes,  3  Law  T.  R.  N.  S.  Q.  B.  699 ;  Wanstead  Local  Board  v. 
Hill,  13  C.  B.  N.  S.  479. 

1  Tannery  Albion,  5  Hill  (1ST.  Y.)  121,  1843;  followed,  Updyke  v.  Camp- 
bell, 4  E.  D.  Smith,  570,  1855;  The  People  v.  Sargeant,  8  Cow.  139,  which 
held  that  a  room  kept  for  the  playing  of  billiards  was  not  a  public  nuisance, 
though  a  rjrofit  was  made  of  it,  commented  on  and  distinguished,  and  by 
Cowen,  J.,  doubted,  in  5  Hill,  sujira.  Whether  a  ball  alley  could  be  prohibited 
under  the  general  authority  to  pass  by-laws  relative  to  good  government,  &c, 
was  alluded  to,  but  not  determined.  See  Jackson  v.  People,  9  Mich.  Ill ; 
Smith  v.  Madison,  7  Ind.  86.  In  the  State  v.  Hull,  32  N.  J.  158, 1867,  it  was 
held  that  a  ten-pin  alley  kept  for  gain  and  public  use  in  a  town  is  not.  per 
$e,  a  nuisance.  The  law  on  the  subject  is  very  fully  examined  in  the  opin- 
ion of  Beasley,  C.  J.,  and  the  case  of  Tanner  v.  Albion,  supra,  reviewed  and 
disapproved.  Where  a  city  has,  by  its  charter,  the  power  to  determine 
whether  bowling  alleys  should  be  allowed,  and,  if  so,  under  what  restrictions, 
an  ordinance  requiring  them  to  be  closed  at  a  certain  hour  is  valid.  State 
«.  Hay,  29  Maine  (16  Shep.)  457,  1849;  State  v.  Freeman,  38  N.  H.  426; 
supra,  sec.  302,  note.  Under  authority  to  pass  such  ordinances  as  the  coun- 
cil "may  consider  fit  and  proper  to  remove  nuisances  or  causes  of  disease," 
<fcc,  it  was  held  that  the  city  of  Savannah  might  prohibit  the  growing  of 
rice  within  the  corporate  limits,  as  being  injurious  to  the  health  of  the  city, 
and  abate  the  same,  and  that  such  an  ordinance  was  valid  as  a  police  regu- 
lation.    Green  v.  Savannah,  6  Geo.  1,  1849.     Where  proceedings  in   respect 


412  MUNICIPAL    CORPORATIONS.  rCn.  XII. 

under  power  to  pass  by-laws  to  prevent  and  remove  nui- 
sances, an  ordinance  may  be  passed  inflicting  a  fine  on  any 
person  who  should  exhibit  a  stud-horse  in  the  streets  of  the 
corporation.1 

§  310.  Power  "to  suppress  bawdy  houses,"  gives  the 
corporation  authority,  by  implication,  to  adopt,  by  ordi- 
nance, the  proper  means  to  accomplish  the  end  ;  aud  among 
the  methods  which  may  be  adopted,  is  one  forbidding  the 
owners  of  houses  from  renting  or  letting  the  same  for  this 
purpose,  or  with  knowledge  that  they  are  to  be  thus  used.4 
But  power  to  the  common  council  of  a  city  "to  make  all 
such  by-laws  as  it  may  deem  expedient  for  effectually 
preventing  and  suppressing  houses  of  ill-fame,"  does  not 
authorize  the  council  to  decide  that  a  given  house  is  kept 
for  that  purpose,  nor  if  kept  fcr  that  purpose,  does  it  au- 
thorize the  council  to  order  it  to  be  demolished  ;  nor  if  thus 
demolished,  will  it  justify  the  officers  of  the  city  who  did  it. 
in  execution  of  the  ordinance  and  resolution  of  the  council.* 

§  311.  A  city  charged  by  law  with  the  duty  of  prevent- 
to  nuisances  are  instituted  by  order  of  the  city  council,  chancery  will  not 
enjoin  or  interfere,  ''unless  the  municipal  corporation  have  clearly  tran- 
scended their  powers."  Kennedy  v.  Phelps,  10  La.  An.  227,  1855  (building 
for  curing  hides) ;  S.  P.  Milne  v.  Davidson  (private  hospital),  5  Martin  (La.) 
586,  1827;  Potter  v.  Menasha,  30  Wis.  492,  1872. 

1  Nolin  v.  Mayor,  4  Yerg.  (Tenn.)  163,  1833.  Under  power  "to  prevent 
and  remove  nuisances,"  a  corporation  may,  if  a  vacant  building  is  so  used 
as  to  endanger  by  fire  the  property  of  others,  or  the  health  of  the  commu- 
nity, declare  the  same  a  nuisance  and  notify  owner  to  abate  it,  and  if  he 
fails,  the  individual  officer  of  the  corporation  who  abates  the  nuisance  may, 
on  being  individually  sued,  justify  the  act.  Harvey  v.  Dewoody,  18  Ark. 
252,  1856. 

2  Childress  v.  Mayor,  &c,  3  Sneed  (Tenn.)  347,  1855.  Power  to  make  by- 
laws relative  to  nuisances,  gives  authority  to  impose  penalties  on  the  keep- 
ers of  houses  of  ill-fame,  and  on  persons  owning  houses  used,  with  their 
knowledge,  for  this  purpose.  McAlister  v.  Clark,  33  Conn.  91,  1865.  See 
Ely  v.  Supervisors,  36  N.  Y.  297;  Shaffer  v.  Mumma,  17  Md.  331,  1861.  In 
prosecutions  for  keeping  bawdy  houses,  the  law,  it  has  been  said,  so  far  re- 
laxes the  ordinary  rule,  that  common  reputation  as  to  the  character  of  the 
defendants,  and  of  the  houses  which  they  keep,  is  admissible.  State  v.  Mc- 
Dowell, Dudley  (South  Car.)  Law,  346. 

3  Welch  v.  Stowell,  2  Doug.  (Mich.)  322,  1846. 


Ch.  XII.]  RELATING    TO     PUBLIC     HEALTH,     &c.  413 

ing  obstructions  of  a  river  within  its  limits,  may,  by  its  own 
act,  and  without  proceeding  by  indictment,  abate  or  remove 
anything  which  obstructs  tbe  free  and  public  use  of  the 
river,  such  as  a  floating  storehouse,  calculated  to  remain 
stationary  in  the  water,  and  which  exclusively  occupies  a 
portion  of  the  river,  such  a  structure  being  a  public  nui- 
sance '  It  is  no  answer  to  this  right  of  abatement  that  room 
enough  is  left  for  the  public,  or  that  the  structure  is  bene- 
ficial ;a  or  that  the  party  erecting  it  is  the  owner  of  the 
adjacent  lots.3 

§  312.  But  under  the  power  to  abate  nuisances,  prop- 
erty lawfully  erected  and  existing,  or  a  house  which  is  only 
a  nuisance  because  occupied  by  a  business  which  is  such, 
cannot  be  destroyed  or  demolished.  The  public  can  pro- 
ceed by  indictment,  or  the  business  carried  on  in  the  house 
suppressed.4 

§  313.  Markets,  and  of  the  Power  to  Establish  and 
Regulate. — The  states,  under  their  police  power,  may  dele- 

1  Hart  v.  Mayor,  &c,  of  Albany,  9  Wend.  571,  1832;  a  valuable  and  very 
carefully  considered  case;  affirming  S.  C,  3  Paige  Ch.  R.  213;  People  v. 
Vanderbilt,  28  N.  Y.  396.  Bee  Dutton  v.  Strong,  1  Black,  23.  The  corpo- 
rate body  may  abate  or  remove  the  nuisance;  but  without  express  a?(t/i<>rif>/ 
cannot  ordain  a  forfeiture  of  the  structure,  or  seize  and  sell  it,  or  convert 
the  materials  to  their  own  use.     9  Wend.  571,  609,  supra. 

2  lb.  Respublica  v.  Caldwell,  1  Dallas,  150;  King  v.  Russel,  6  East, 427; 
King  v.  Cross,  3  Camp.  224 ;  King  v.  Jones,  3  Camp.  229. 

3  Hart  v.  Mayor,  &c,  9  Wend.  571,  608;  Strange  R.  1247;  3  Bac.  Abr. 
686;  1  Hawk.  P.  C.  363,  note  1. 

4  Clark  v.  Syracuse,  13  Barb.  32;  Welch  v.  Stowell,  2  Doug.  (Mich.)  332, 
1846;  Miller  v.  Burch,  32  Texas,  209,  18U9.  When  equity  will  interfere  to 
prevent  and  remove  nuisances  which  affect  the  public  generally.  People  v. 
St.  Louis,  5  Gilm.  (111.)  372;  Hoole  v.  Attorney-General.  22  Ala.  190.  At- 
torney-General v.  Gas  Company,  19  Eng.  Law  and  Eq.  639;  Aldrich  v. 
Howard,  7  Rh.  Is.  87;  Zabriskie  v  Railroad  Company,  2  Beasley  Ch.  (N.  J.) 
314;  Jersey  City  v.  Hudson,  lb.  420;  Dumesnil  v.  Dupont,  18  B.  Mon.  800, 
1857.  A  city  council  may,  by  resolution,  direct  its  officers  to  proceed 
against  a  specified  establishment  as  a  nuisance,  and  cause  the  same  to  be 
abated  under  a  general  ordinance  of  the  corporation;  this  is  a  different 
thing  from  passing  an  ordinance  inflicting  a  fine  upon  a  particular  person 
(or  keeping  a  nuisance,  which  cannot  be  lawfully  done.  Kennedy  v.  Phelps, 
10  La.  An.  227,  1855.  See  Commonwealth  v.  Goodrich,  13  Allen,  545; 
Municipality  v.  Blineau,  3  La.  An.  688. 


414  MUNICIPAL     CORPORATIONS.  [Ch.  XIL 

gate  to  municipal  corporations  the  authority  to  establish,  01 
authorize  the  establishment  of,  markets  ;  and  it  is  compe- 
tent to  such  corporations,  under  proper  grants  of  power,  to 
enact  ordinances  forbidding  sales  and  purchases  of  market- 
able articles,  except  at  designated  market  places.  The 
extent  of  the  power  possessed  by,  a  particular  corporation 
depends  upon  its  charter.  In  England  the  regulation  of 
markets  by  by-laws  has  long  been  exercised,  and  such  by- 
laws are  sustained  as  being  reasonable,  and  conducive  to  the 
health  and  good  government  of  the  municipality.1  In  this 
country  the  practice  is  almost  universal  on  the  part  of  the 
legislature  to  confer  upon  the  municipal  agencies  more  or 
less  authority  with  respect  to  markets  and  market  places, 
and  such  grants  are  not  so  strictly  construed  as  those  which 
invest  the  corporation  with  powers  of  a  more  extraordinary 
or  unusual  character — at  least  such  is  the  case  unless  a  mo- 
nopoly in  favor  of  private  individuals  is  sought  to  be  sus- 
tained, against  which  the  courts  strongly  lean.2 

1  Pierce®.  Bartram,  Cowp.  270;  Player  v.  Jenkins,  1  Sid.  284;  Rex  vr 
Cottrell,  1  B.  &  Ad.  67,  1817.  See,  also,  Mosley  v.  Walker,  7  Bam.&  Cress. 
40;  Mayor,  &c.  v.  Pedley,  4  Barn.  &  Adol.  397;  Grant  on  Corp.  166,  as  v 
exclusive  privileges  in  England  as  to  markets  and  market  tolls.  Defini- 
tion.— A  market  is  a  franchise  or  liberty  derived  from  the  crown,  by  grant, 
or  prescription  which  presupposes  a  grant.  2  Black.  Com.  37.  "It  is  a 
designated  place  in  a  town  or  city  to  which  all  persons  can  repair  who 
wish  to  buy  or  sell  articles  there  exposed  for  sale."  Fer  Breese,  J.,  Cald- 
well v.  Alton,  33  111.  416. 

"A  municipal  market  consists:  1.  In  a  place  for  sale  of  provisions  and 
articles  of  daily  consumption.  2.  Convenient  fixtures.  3.  A  system  of  police 
regulations,  fixing  market  hours,  making  provisions  for  lighting,  watching, 
cleaning,  detecting  false  weights  and  unwholesome  food,  and  other  arrange- 
ments calculated  to  facilitate  the  intercourse  and  insure  the  honesty  of  buyer 
and  seller.  4.  Proper  officers  to  preserve  order  and  enforce  obedience 
to  the  rules."  Per  Lane,  C.  J.,  Cincinnati  v.  Buckingham,  10  Ohio,  257, 
1840. 

2  Wartman  v.  Philadelphia,  33  Pa.  St.  202,  209,  1854;  Le  Claire  v.  Daven- 
port, 13  Iowa,  210;  White  v.  Kent,  11  Ohio  St.  550;  St.  John  v.  Mayor,  &c. 
of  New  York,  6  Duer,  815;  Ash  v.  People,  11  Mich.  347;  St.  Louis  v.  Jack- 
son, 25  Mo.  37;  St.  Louis  v.  Weber,  44  Mo.  547,  1869;  Nightingale's  Case, 
11  Pick.  168;  Congot  ».  New  Orleans,  16  La.  An.  21;  Buffalo  v.  Webster, 
10  Wend.  99;  Yates  v.  Milwaukee,  12  Wis.  673;  Bethune  v.  Hughes,  7  Geo. 
560;  Ketchum  v.  Buffalo,  14  N.  Y.  356;  Municipality  v.  Cutting,  4  La.  An. 
336;  New  Orleans  v.  Guillotte,  12  La.  An.  818  (corporate  partnership  with 
individuals);  State*.  Lieber,   11  Iowa,  407;  Dubuque  v.  Miller,  11  Iowa, 


Ch.  XII.]  RELATING    TO    PUBLIC     HEALTH,     &c.  415 

§  314.  Power  to  Build,  and  Establish. —Incorporated 
cities  and  towns  may  have  the  power  to  build  market  houses 
without  an  express  grant.  Thus  it  has  been  held,  that  a 
town  having  authority  "  to  make  by-laws  for  managing  and 
ordering  its  prudential  affairs,"  has  power— the  court  look- 
ing somewhat  to  usage  and  custom  to  ascertain  what  sub- 
jects of  common  interest  are  embraced  under  the  term, 
"  prudential" — to  appropriate  money  for  the  erection  of  a 
market  house,  and  to  raise  the  amount  by  taxation.  This 
power,  it  was  admitted,  more  clearly  exists  in  the  case  of 
large  towns  and  populous  villages.1 

§315.  Power  conferred  upon  a  municipality  "to  es- 
tablish and  regulate  markets,"  authorizes,  as  a  necessary 
incident,  the  purchase  of  ground  upon  which  to  erect  a 
market  building.2  If  the  title  to  land  purchased  for  the 
erection  of  a  market  house  be  taken  by  the  municipal  cor- 
poration in  fee,  no  length  of  use  of  the  same  for  a  market 
will  dedicate  it  for  market  purposes  ;  and  the  markets  may 
be  abandoned  or  changed  at  the  will  of  the  council,  and  the 
land  thus  acquired  and  held  be  sold.3    It  is  incident  to  the 

583;  Municipality  v.  Cutting,  4  La.  An.  335;  Morano  v.  Mayor,  2  La.  218; 
St.  Paul  v.  Coulter,  12  Minn.  41 ;  Atlanta  v.  White,  33  Geo.  229. 

The  power  to  establish  and  regulate  markets,  like  most  other  municipal 
powers,  is  a  continuing  one,  and  markets  once  established  maybe  abandoned 
or  changed  at  the  pleasure  of  the  corporation,  and  the  tax-payers  or  prop- 
erty owners  cannot  restrain  the  action  or  determination  of  the  council  en- 
trusted by  the  charter  with  the  exercise  of  the  power.  Gall  v.  Cincinnati, 
18  Ohio  St.  563,  1869. 

1  Spaulding  v.  Lowell,  23  Pick.  71,  1839.  If  the  real  and  principal 
object  is  the  building  of  a  market  house,  the  appropriation  of  a  portion  of 
the  building  for  other  purposes,  as  the  holding  of  courts,  does  not  render 
the  erection  of  the  building  illegal.  If,  however,  the  building  of  the 
market  house  is  merely  colorable,  that  is,  done  for  the  purpose  of  accom- 
plishing distinct  and  unauthorized  objects,  it  would,  says  Chief  Justice  Shaw, 
probably  be  treated  as  an  abuse  of  power  and  a  nullity.     lb. 

1  Ketchum  v.  Buffalo,  14  N.  Y.  356;  17  N.  Y.  449;  Caldwell  v.  Alton, 
33  111.  416.  It  is  immaterial  whether  this  power  is  conferred  in  express  or 
direct  terms,  or  given  only  as  part  of  the  power  to  make  by-laws,  ordi- 
nances, &c.  Per  Selden,  J.,  in  Ketchun.  v.  Buffalo,  14  N.  Y.  356,  362. 
Purchase  of  land  for  market.  People  v.  Lowber,  28  Barb.  65 ;  S.  C.  more 
fully,  7  Abb.  Pr.  Rep.  158;  Gale  v.  Kalamazoo,  23  Mich.  344,  1871. 

3  Gall  v.  Cincinnati,  18  Ohio  St.  563,  1869. 


416 


MUNICIPAL     CORPORATIONS.  [Ch.  XIX 


general  power  to  build  a  market  to  determine  upon  the 
form,  dimensions,  and  style  of  the  edifice,  and  therefore  to 
employ  an  architect  to  prepare  plans,  specifications,  &cl 

§  316.  But  power  to  a  municipal  corporation  to  establish 
markets  and  build  market  houses  will  not  give  the  author- 
ity to  build  them  on  a  public  street.  Such  erections  are 
nuisances  though  made  by  the  corporation,  because  the 
street,  and  the  entire  street,  is  for  the  use  of  the  whole 
people.  They  are  nuisances  when  built  upon  the  streets, 
although  sufficient  space  be  left  for  the  passage  of  vehicles 
and  persons.  Such  erections  may,  it  seems,  be  legalized  by 
an  express  act  of  the  legislature.  But  unless  so  legalized, 
a  nuisance  erected  and  maintained  by  a  public  corporation 
may  be  proceeded  against,  criminally  or  otherwise,  the  same 
as  if  erected  by  private  persons.' 

§  317.  Every  municipal  corporation  which  has  power  to 
make  by-laws  and  establish  ordinances  to  promote  the  gen- 
eral welfare,  and  preserve  the  peace  of  a  town  or  city,  may 
fix  the  time  or  places  of  holding  public  markets  for  the  sale 
of  food,  and  make  such  other  regulations  concerning  them 
as  may  conduce  to  the  public  interest.3  The  right  to  estab- 
lish a  market  includes  the  right  to  abandon  it,  or  shift  it  to 
another  place  when  the  public  convenience  demands  it,  and 
of  this  the  council  is  the  judge.4 

1  Peterson  v.  Mayor,  &c.  of  New  York,  17  N.  Y.  449, 1858.  His  unauthor- 
ized employment  by  a  committee  is  ratified  by  a  resolution  of  the  council 
passed  with  notice  of  the  facts,  adopting  his  plans,  drawings,  &c,  and  he 
may  recover  of  the  city  for  the  labor  and  service  of  preparing  them.     lb. 

>  Wartman  v.  Philadelphia.  33  Pa.  St.  202,  210,  1854;  St.  John  v.  New 
York,  3  Bosw.  (N.  Y.)  483 ;  State  v.  Mobile,  5  Port.  279,  1837 ;  Common- 
wealth v.  Rush,  14  Pa.  St.  (2  Harris)  186;  Commonwealth  v.  Bowman,  3 
Pa.  St.  (3  Barr  )  202,  206.  See  chapter  on  Streets,  post,  sec.  521.  Under 
the  constitution  of  New  Jersey,  the  legislature  cannot  authorize  a  market 
in  the  public  streets  without  providing  compensation  to  adjoining  lot 
owners.     State  v.  Laverack,  34  N.  J.  Law,  201,  1870. 

8  Per  Black,  C.  J.,  Wartman  v.  Philadelphia,  33  Pa.  St.  202,  209,  1854. 
Note  his  observations  in  this  case  upon  the  necessity  and  convenience  of 
markets. 

*  lb.     "The  right  to  establish  markets  is  a  branch  of  the  sovereign 


Oh.  XII.]  RELATING     TO     PUBLIC  HEALTH,     &c.  417 

§  318.  Nature  of  Power  to  Establish  and  Regulate.— 
A  city  corporation  was  invested  by  its  charter  with  power 
"to  erect  market  houses,  to  establish  markets  and  market 
places,  and  to  provide  for  the  government  and  regulation 
thereof,"  and  it  was  at  first  decided,  and  in  the  author's 
judgment  properly  decided,  by  the  Supreme  Court  of  the 
state,  that  this  did  not  authorize  the  corporation  to  pass  an 
ordinance  delegating  to  an  individual  the  right  to  erect 
market  houses,  and  to  charge  rent  for  the  use  of  the  stalls 
therein,  reserving  to  itself  no  power  to  control  the  same, 
and  that  the  corporation  could  not  compel  persons  to  go  to 
such  markets  ;  but  subsequently  this  ruling  was  reversed, 
and  it  was  held  that  such  an  ordinance  was  valid,  and  that 
the  city  had  the  power  to  authorize  the  erection  of  market 
houses  by  an  individual,  and  to  declare  the  same  a  public 
market,  and  to  covenant  to  protect  the  owner  in  the  exclu- 
sive privilege  thereof  ;  and  that  the  city  was  liable  for  fail- 
ing to  protect  him  by  the  passage  of  the  requisite  ordi- 
nances, he  having,  on  the  faith  of  the  ordinance,  erected  an 
expensive  market  house.1 

power,  and  the  right  to  regulate  them  is  necessarily  a  power  of  municipal 
police."     Per  Eustes,  C.  J.,  Municipality  v.  Cutting,  4  La.  An.  335. 

1  Le  Claire  v.  Davenport,  13  Iowa,  210,  1862;  overruling,  Davenport  v. 
Kelly,  7  Iowa,  102.  It  may  be  suggested  that  the  right  to  pass  such  an  or- 
dinance, and  the  liability  for  failing  to  pass  others,  may  admit,  at  least,  of 
fair  debate,  in  view  of  the  surrender  by  the  cityof  its  charter  powers,  and  its 
inability  in  law  to  make  binding  contracts  with  reference  to  the  future  ex- 
ercise of  its  legislative  authority.  The  soundness  of  this  suggestion  is  con- 
firmed by  the  decision  in  Gale  v.  Kalamazoo,  23  Mich.  344,  1871.  Post,  sec. 
754.  In  the  Kelly  case,  supra,  the  point  was  decided,  and  is  not  overruled, 
that  the  charter  pow^r  to  establish  markets,  &c,  conferred  upon  the  council 
the  authority  to  prohibit  the  exposing  and  offering  for  sale  meat  in  any 
other  places  than  those  the  ordinance  designated.  Ash  v.  People,  11  Mich. 
347;  Hatch  v.  Pendergast,  15  Md.  251. 

A  city  in  granting  a  license  and  selling  to  a  party  the  right  to  occupy  a 
stall  in  the  market  does  not  impliedly  contract  to  protect  the  lessee  from 
competition  by  unlicensed  persons ;  nor  can  such  a  contract  be  implied 
against  the  corporation  from  the  existence  of  an  ordinance  prohibiting  the 
same;  and  the  failure  of  the  officers  of  the  corporation,  though  willful,  to 
enforce  the  ordinance  against  unlicensed  sellers,  is  no  defence  to  a  bond 
given  by  the  lessee  for  the  payment  of  stall  rent.  Peck  v.  Austin,  22  Texas, 
261,  1858.  Nor  does  a  city  owning  and  leasing  a  market  house  impliedly 
engage  or  covenant  that  it  will  not  exercise  its  power  to  establish  markets 

27 


418  MUNICIPAL    CORPORA  i  IONS.  [Ch.  XII. 

§  319.  Construction  of  Special  Powers  in  Relation  to 
Markets. — Power  to  make  "by-laws  relative  to  the  public 
markets,"  &c,  while  it  would  not  authorize  a  corporation 
entirely  to  prohibit  the  sale  of  meats,  &c,  within  its  limits, 
because  this  would  be  in  general  restraint  of  trade,  will 
nevertheless  authorize  a  by-law  forbidding  the  hawking 
about  or  selling  by  retail  meats,  &c,  except  at  the  public 
markets  and  within  certain  limits  about  the  same.1  The 
courts  differ  somewhat  in  their  construction  of  the  extent  of 
power  to  establish  and  regulate  markets,  as  will  be  seen  by 
the  cases  cited  in  the  note.2 

by  erecting  other  market  houses  and  leasing  them  to  others;  if  it  does  so, 
the  injury  to  the  first  lessees  is  damnum  absque  injuria.  Congot  v.  New  Or- 
leans, 16  La.  An.  21,  1861.  As  to  duty  of  corporation  where  they  sell  or 
farm  out  an  exclusive  privilege  to  vend  articles,  to  enforce  ordinances  de- 
signed to  protect  the  privilege :  La  Rosa  v.  Mayor,  4  La.  24 ;  Same  v.  Same, 
1  lb.  126;  Mayor,  &c.  v.  Peyroux,  6  Martin  (La.)  155;  Griffin  v.  Mayor,  5 
Martin  (La.)  279.  City  corporation  cannot  agree  to  abdicate  its  legislative 
powers  in  relation  to  markets,  nor  contract  to  create  a  monopoly.  Gale  v. 
Kalamazoo,  23  Mich.  344,  1871.    Ante,  sec.  296. 

1  Buffalo  v.  Webster,  10  Wend.  100,  1833.  Chief  Justice  Savage  affirms, 
arguendo,  that  such  an  ordinance  would  be  valid  under  the  common  law 
power  of  corporations  to  make  by-laws  for  the  general  good  of  the  corpora- 
tion, lb.  Approving  Pierce  v.  Bartram,  Cowp.  269;  following  Bush  v. 
Seabury,  8  Johns.  418,  1811,  and  distinguished  from  Dunham  v.  Rochester, 
5  Cow.  462;  Shelton  v.  Mobile,  30  Ala.  540,  1857.  "The  fixing  the  place 
and  times  at  which  markets  shall  be  held  and  kept  open,"  says  the  Supreme 
Court  of  New  York  in  Bush  v.  Seabury,  8  Johns.  418,  "and  the  prohibition 
to  sell  at  other  places  and  times,  are  among  the  most  ordinary  regulations 
of  a  city  or  town  police,  and  would  naturally  be  included  in  the  general 
power  to  pass  by-laws  relative  to  the  public  markets.  If  the  corporation 
had  not  the  power  in  question,  it  is  'difficult  to  see  what  useful  purpose 
could  be  effected,  or  what  object  was  intended,  by  the  grant  of  power  to 
pass  laws  'relative  to  the  public  markets.'  " 

-  Power  to  make  ordinances  concerning  "  markets,  health,  and  good  or- 
der "  of  the  town,  authorizes  an  ordinance  prohibiting  the  sale  of  butcher's 
meat  within  the  corporate  limits,  excepting  at  the  public  market.  Winsboro 
v.  Smart,  11  Rich.  (South  Car.)  Law,  551,  1858.  It  seems  the  defendant  was 
convicted,  though  he  sold  the  meat  inside  his  own  blacksmith  shop.  Such 
ordinances  are  sustained,  says  the  court,  on  the  ground  that  they  are  not  in 
restraint  of  trade,  but  a  proper  regulation  of  it.  Il>:  So,  in  the  City  of  St. 
Louis  v.  Jackson,  25  Mo.  37,  1857,  where  it  appeared  that  the  city,  under 
proper  authority,  had  erected  a  public,  or  city,  market-house,  and  that  by 
its  charter  it  had  power  also,  "  to  regulate,"  by  ordinance,  the  sale  of  meats 
it  was  held  that  this  gave  the  city  authority  to  provide,  by  ordinance,  thai 


Cb.  XT.]  RELATING    TO     MARKETS,     &c.  419 

§  320.     In  a  well  considered  case  in  Massachusetts  it  is 
decided  that  a  city  corporation  has  the  clear  right  to  pro- 

"  no  person,  not  a  lessee  of  a  stall  in  the  market,  shall  sell,  or  offer  for  sale, 
meat  in  less  quantities  than  one  quarter."  The  court  considered  such  an 
ordinance  as  reasonable,  highly  proper,  and  not  in  restraint  of  trade,  and 
rot  embraced  in  the  reasoning  in  the  case  of  Dunham  v.  Trustees  of  Roches- 
ter, 5  Cow.  (K  T.)  462;  S.  P.,  see,  also,  St.  Louis  v.  Weber,  44  Mo.  547, 
1869;  Le  Claire  v.  Davenport,  13  Iowa,  210;  Davenports.  Kelly,  7  Iowa,  102; 
Ash  v.  People,  11  Mich.  347.  But  in  Caldwell  v.  Alton,  33  111.  416,  1864, 
where  the  city,  by  its  charter,  had  power  "  to  establish  and  regulate  markets," 
and  under  the  power  passed  an  ordinance  forbidding,  during  market  hours, 
the  sale  of  vegetables  outside  the  limits  of  the  market,  it  was  held  that  the 
city  could  not  restrain  a  regular  dealer  or  merchant  from  vending  vegeta- 
bles at  his  place  of  business  outside  of  market  limits  during  any  part  of  the 
day,  such  a  restraint  of  trade  being  unreasonable.  The  court  reviewed 
many  of  the  cases  in  other  states  on  this  subject,  and  were  of  opinion  that 
the  power  to  regulate  could  only  extend  to  the  market  limits,  and  that 
these  limits  could  not,  under  this  power,  be  made  to  extend  throughout  the 
city.  The  court  adhered  to  its  views  in  a  subsequent  case  in  which  it  was 
held  that  power  "to  erect  market  houses,  establish  markets  and  market 
places,  and  provide  for  the  government  and  regulation  thereof,"  does  not 
authorize  the  council  of  a  large  and  growing  town  to  fix  upon  one  market 
place,  and  prohibit  all  persons  at  all  hours  of  the  day  from  selling  fresh 
meats  elsewhere.  Such  an  ordinance  was  regarded  as  unreasonable,  in 
restraint  of  trade,  and  tending  to  create  a  monopoly.  It  was  admitted, 
however,  that  if  the  ordinance  had  fixed  a  reasonable  number  of  hours 
each  day  in  which  the  prohibition  should  operate,  leaving  persons  free  to 
sell  outside  of  market  hours,  it  would  probably  be  unobjectionable.  Bloom- 
ington  v.  Wahl,  46  HI.  489,  1868.  So,  in  Bethune  v.  Hughes,  28  Geo.  560, 
1859,  the  court,  leaning  against  exclusive  privileges,  held  that  power  by 
the  charter  to  the  corporation  "to  establish  and  keep  tip  a  public  market  in 
the  city  for  the  sale  of,"  &c.,does  not  confer  upon  the  city  power  to  pass  an 
ordinance  prohibiting  the  sale  of  marketable  articles  elsewhere  than  at  the 
market  place.  S.  P.  St.  Paul  v.  Laidler,  2  Minn.  190,  1858;  commented  on 
and  disapproved  in  St.  Louis  v.  Weber,  44  Mo.  547,  1869 ;  see  St.  Paul  v. 
Coulter,  12  Minn.  41.  An  ordinance  regulating  the  killing  and  bleedim* 
of  meats  is  authorized  by  power  to  regulate  butchers,  the  place  and  mode 
of  selling,  and  to  prevent  unlicensed  persons  from  acting  as  butchers.  City 
of  Brooklyn  v.  Cleves,  Hill  &  Denio,  Suppl.  231,  1843.  Under  power  to 
regulate  the  vending  of  meats,  a  conviction  under  an  ordinance  forbidding 
the  sale  of  unwholesome  meats  and  other  provisions  cannot  be  sustained  for 
selling  putrid  eggs.  Mayor,  &c.  of  Rochester  v.  Rood,  Hill  &  Denio,  Suppl 
146. 

By  the  Municipal  Act  of  Canada  the  Council  may  pass  by-laws  "  for 
establishing  and  regulating  all  markets;  for  preventing  or  regulating  the 
sale  by  retail  in  the  public  streets  of  any  meat,  vegetables,  fruit,  or  bever- 
ages; for  regulating  the  place  and  manner  of  selling  and  weighing  butcher's 


4O0  MUNICIPAL    CORPORATIONS.  [On.  XII. 

hibit,  by  ordinance,  the  occupation  of  a  stand,  for  the  vend- 
ing of  commodities,  in  the  streets.  It  may  thus  prohibit 
not  only  its  own  inhabitants,  but  others.  It  may  make  the 
prohibition  absolute,  or  it  may  make  it  conditional  on 
obtaining  license  or  permission.  It  is  in  the  nature  of  a 
police  regulation,  and  does  not  violate  private  rights  or  im- 
properly restrain  trade.1 

meat,  fish,  hay,  straw,  fodder,  wood,  and  lumber,  &c.  Harr.  Mimic. 
Manual,  2d  ed.  p.  228.  The  following  cases,  digested  by  Mr.  Harrison,  show 
the  judicial  construction  of  the  act: 

The  power  is  to  regulate  all  markets  established,  apparently  including 
those  established  by  the  Crown  as  well  as  those  established  by  municipal 
authority.  Regulation  must  of  necessity  include  the  appropriation  of  one 
or  more  parts  of  the  market  for  one  purpese  and  other  part  or  parts  for 
other  purposes;  of  providing  that  free  passage  through  the  market  be  kept 
open  for  ready  access  to  shops,  stalls,  or  other  places  where  different  com- 
modities are  exposed  for  sale.  Per  Draper,  C.  J.,  in  Kelly  and  the  Corpora- 
tion of  the  City  of  Toronto,  23  U.  C.  Q.  B.  426. 

A  by-law  enacting  "  that  no  butcher  or  other  person  shall  cut  up  or  ex- 
pose for  sale  any  fresh  meat  in  any  part  of  the  city  except  in  the  shops  and 
stalls  in  the  public  markets,  or  at  such  places  as  the  Standing  Committee  on 
Public  Markets  may  appoint, "  was  held  good.  lb.  But  a  by-law  enact- 
ing '•  that  no  person  should  expose  for  sale  any  meat,  fish,  poultry,  eggs, 
butter,  cheese,  grain,  hay,  straw,  cord-wood,  shingles,  lumber,  flour,  wool, 
meal  vegetables,  or  fruit  (except  wild  fruit),  hides  or  skins,  within  the 
town,  at  any  place  but  the  public  market,  without  having  first  paid  the  mar- 
ket fee  thereon  as  therein  provided,  except  all  hides  and  skins  from  animals 
slaughtered  by  the  licensed  butcher  of  the  corporation  holding  a  stall  in 
the  market,"  was  held  bad.  In  re  Fennell  and  the  Corporation  of  the  Town 
of  Guelph,  24  TJ.  C.  Q.  B.  238.  Also,  "  that  meat,  fish,  poultry,  eggs,  cheese, 
grain,  hay,  straw,  cord-wood,  shingles,  lumber,  flour,  wool,  meal,  vegetables  or 
}r>'U  (except  wild  fruit),  should  not  be  exposed  for  sale  within  the  muni- 
cipality except  in  the  market,  before  12  o'clock,  noon,"  was  held  bad  as  to 
the  articles  mentioned  in  italics.     I  b. 

'  Nightingale,  Petitioner,  &c,  11  Pick.  168, 1831.  In  this  case  the  ordi- 
nance of  the  city  (Boston)  provided  "  that  no  inhabitant  of  the  city  of  Bos- 
ton, or  of  any  town  in  the  vicinity  thereof,  not  offering  for  sale  the  produce 
of  his  own  farm,  &c,  should,  without  the  permission  of  the  clerk  of  Fancuil 
Hall  market,  be  suffered  to  occupy  any  stand  with  cart,  sleigh,  or  otherwise, 
for  the  purpose  of  vending  commodities  in  either  of  the  streets  mentioned 
in  the  first  section  of  this  ordinance,"  &c.  It  was  objected  against  this 
ordinance  fiat  it  was  void :  1.  Because  it  was  partial,  not  operating  upon 
all  the  citizens  of  the  state  equally.  2.  Because  it  was  uncertain,  the  term 
«  vicinity  "  being  indefinite.  And,  3.  Because  it  was  in  restraint  of  trade. 
But  neither  of  these  objections  was  considered  tenable.  The  validity  .1 
such  an  ordinance  was  again  affirmed  by  the  same  court  in  Commonwealth 


Cn.  XII.]  RELATING    TO    MARKETS,     &c.  421 

§  221.  But  authority  to  erect  a  market,  and  power  "  to 
iegulate  the  general  police,"  and  "to  preserve  the  peace 
and  good  order  of  the  city,"  do  not  authorize  the  corpora 
tion  to  impose  a  tax  for  revenue  purposes  upon  persons  oc- 
cupying market  stands  in  the  streets,  or  selling  produce 
therein.  Such  a  power  must  be  plainly  conferred  or  it  will 
not  be  held  to  exist.1 

§  322.  The  right  to  regulate  markets  established  by  a 
city  under  its  charter  is  one  of  municipal  police.  The  city 
authorities  may  say  what  articles  shall  or  shall  not  be  sold 
at  the  public  markets,  and  may  impose  penalties  on  those 
who  violate  their  ordinances.  They  may,  for  example, 
prohibit  groceries  and  oysters  from  being  sold  at  the  public 
markets,  and  require  oysters,  which  have  a  great  tendency 
to  putrefaction,  to  be  sold  at  certain  designated  stands,  and 
prevent  their  being  sold  elsewhere." 

§  323.  Inspection  Ordinances. — A  municipal  corpora- 
tion, says  Mr.  Willcock,  may  regulate  the  manner  of  carry- 
ing on  trade  within  a  municipality  so  far  as  to  prevent 

v.  Rice,  9  Met.  253,  1845.  See  this  case,  also,  as  to  requisites,  in  certain 
respects,  of  complaints  for  the  violation  of  such  an  ordinance,  and  as  to 
what  acts  will  be  deemed  to  be  violations.  Shelton  v.  Mayor,  &c.  of  Mobile, 
30  Ala.  540,1857;  "Wartman  v.  Philadelphia,  33  Pa.  St.  202,  1854.  An 
ordinance  forbade  the  sale  of  fresh  meats  except  by  persons  licensed,  but 
contained  a  proviso  in  favor  of  farmers,  authorizing  them  to  sell  meats,  the 
produce  of  their  own  farms.  The  evident  object  was  considered  to  be  to 
protect  licensed  butchers,  and  at  the  same  time  to  allow  farmers  to  come  in 
and  sell  the  produce  of  their  own  farms.  It  was  held  that  an  unlicensed 
butcher  was  not  a  "farmer  "  within  the  meaning  of  the  proviso,  although  the 
meats  which  he  sold  came  from  sheep  fattened  on  his  farm,  if  the  farm  was 
only  a  convenient  appendage  to  his  business  as  a  butcher.  Rochester  v. 
Pettinger,  17  Wend.  265,  1837. 

1  Kip  v.  Patterson,  2  Dutch.  (N.  J.)  298,  1857.  This  power,  it  was  said, 
would  authorize  "  the  renting  of  stalls  in  the  market  house,  and  perhaps  of 
even  prohibiting  sales  in  the  public  streets."     lb,  per  Elmer,  J. 

2  Municipality  v.  Cutting,  4  La.  An.  335,  1849;  Morano  v.  Mayor,  2  La. 
218.  Power  of  city  to  vacate  leases  and  stalls  in  public  market,  under  ordi- 
nance reserving  the  right,  see  City  Council  v.  Goldsmith,  2  Speer's  (South 
Car.)  Law,  428.  Occupant  of  city  market  failing  to  pay  rent  in  advance, 
according  to  contract,  held  a  tenant  at  will.  Dubuque  v.  Miller,  11  Iowa, 
503.     Control  over  tenants.     Wcelpper  v.  Philadelphia,  38  Pa.  St.  203. 


422  MUNICIPAL     CORPORATIONS.  [Ch.  XIL 

monopoly,  or  the  sale  of  unfit  commodities,  and  to  insure 
proper  conduct  in  those  who  practice  it  within  their  jurisdic- 
tion.1 In  general,  it  may  be  said,  that  incorporated  cities 
and  larger  towns  in  this  country  have  conferred  upon  them 
the  power  to  pass  ordinances  regulating,  to  a  reasonable 
extent,  the  mode  in  which  the  traffic  of  the  place  shall  be 
conducted  ;  but  they  can  exercise  no  powers  in  this  respect 
not  conferred.2  Laws  requiring  articles  to  be  inspected  or 
weighed  and  measured  before  being  sold,  are  in  the  nature 
of  police  regulations,  and  are  valid  in  the  absence  of  special 
constitutional  provisions.  When  reasonable  in  their  nature, 
they  are  not  regarded  as  being  in  restraint  of  trade.' 

§  324.  Power  to  a  city  "to  regulate  the  public  market, 
and  to  pass  such  other  ordinances  as  shall  seem  meet  for 
the  improvement  and  good  government  of  the  city,"  au- 
thorizes an  ordinance  requiring  oats,  hay,  &c,  to  be  weighed 

1  Willc.  Corp.  142,  pi.  332. 

1  Nightingale's  Case,  11  Pick.  108;  Stokes  v.  New  York,  14  Wend.  87; 
Raleigh  v.  Sorrell,  1  Jones  (North  Car.)  Law,  49;  Chicago  v.  Quimby,  38 
111.  274,  1858;  Howe  v.  Norris,  12  Allen,  82;  Libbey  v.  Downey,  5  Allen, 
299;  Collins  c.  Louisville,  2  B.  Mon.  134,  1841.  Power  to  appoint  measurers 
of  wood,  and  affix  a  reasonable  allowance  to  them,  does  not  justify  the  im- 
position of  a  tax  for  revenue.     lb. 

3  Cooley  Const.  Lim.  596 ;  Raleigh  v.  Sorrell,  supra;  Stokes  v.  New 
York,  supra;  Page  v.  Fazakerly,  36  Barb.  392 ;  Mayor,  &c.  of  New  York  v. 
Nichols,  4  Hill  (N.  Y.)  209,  1843;  compare  Mayor  v.  Hyatt,  3  E.  D.  Smith, 
156;  Rogers  v.  Jones,  1  "Wend.  287;  Yates  v.  Milwaukee,  12  "Wis.  673.  The 
system  of  inspection  latcs,  and  the  hosts  of  officers  which  they  engendered, 
were  considered  by  the  constitutional  convention  of  New  York  to  entail 
annoyances  and  burdens  upon  the  community  sufficient  to  outweigh  any 
benefits  resulting  from  them;  and  the  constitution  of  1846  (art.  V.  sec.  8) 
abolished  all  such  offices  and  forbade  the  legislature  to  re-create  them,  in 
this  language :  "  All  offices  for  the  weighing,  measuring,  culling,  or  inspect- 
ing of  any  merchandise,  produce,  manufacture,  or  commodity  whatever,  are 
hereby  abolished,  and  no  such  offices  shall  hereafter  be  created  by  law." 
See  Tinkham  v.  Tapscott,  17  N.  Y.  144,  147,  1858,  where  the  origin,  scope, 
and  purpose  of  this  provision  are  very  satisfactorily  discussed  by  Denio,  J. 
In  Illinois  it  is  held  that  inspection  power  conferred  upon  a  board  of  trade, 
to  be  exercised  when  requested  by  its  members,  may  co-exist  with  like 
power  in  the  city  authorities  to  be  exercised  in  all  cases  when  requested. 
Chicago  v.  Quimby,  38  111.  274,  1858. 


Ch.  Xn.l  RELATING    TO    MARKETS,     &c.  423 

by  the  public  weighmaster  before  being  offered  for  sale,  and 
imposing  a  penalty  for  its  violation.1 

§  325.  A  grant  to  the  common  council  of  "  all  powers, 
rights,  &c,  incident  to  municipal  corporations  and  necessary 
to  the  proper  government  of  the  same,"  might  authorize  a 
city  to  prevent  the  sale  of  bread  made  out  of  unwholesome 
flour,  and,  as  a  consequence,  to  provide  for  its  inspection, 
but  it  would  not  give  the  power  to  regulate  the  assize,  that 
is,  the  weight  and  price  of  bread,  for  the  latter  is  a  power 
not  absolutely  necessary  for  the  proper  government  of  a 
city.  Power,  however,  to  a  city,  "to  regulate  everything 
which  relates  to  bakers,"  does  authorize  an  ordinance 
regulating  the  weight,  size,  and,  it  seems,  the  price,  of  bread, 
and  the  forfeiture  of  bread  illegally  baked ;  and  such  an 
ordinance,  it  has  been  held,  is  not  in  violation  of  any  pro- 
vision of  the  constitution  of  Louisiana.2 

§  326.  Police  Regulations  Respecting  the  Public 
Peace  and  Safety. — Our  city  governments  usually  possess 
the  power,  either  by  express  grant  or  by  virtue  of  their  au- 
thority to  make  by-laws  relating  to  the  public  safety  and 
good  order  of  the  inhabitants,  to  regulate  the  rate  of  speed 
of  travel  in  the  public  streets  ;  the  route  or  streets  over 
which  omnibuses,  stage-coaches,  drays,  &c,  may  run  ;  the 
tima  of  day  in  which  the  streets  may  be  used  for  certain 
purposes  ;  to  interdict  stoppages  in  the  street  to  the  delay 
of  others ;  to  exclude  vehicles  of  all  kinds  from  entering 
upon  or  passing  over  the  sidewalks,  &c,  &c.     The  public 

1  Raleigh  v.  Sorrell,  1  Jones  (North  Car.)  Law,  49,  1853;  approving 
Nightingale's  Case,  11  Pick.  108;  Stokes  v.  Corporation  of  New  York,  14 
Wend.  87.  This  power  was  also  held  to  authorize  the  creation  of  the  office 
of  weighmaster  and  the  payment  of  his  salary.  1  Jones,  49,  supra.  Con- 
struction of  ordinance  as  to  weighing  hay  on  public  scales.  Goss  v.  Corpo- 
ration, &c,  4  Sneed  (Tenn.)  62;  Yates  v.  Wilwaukee,  12  Wis.  673.  Con- 
struction of  statute  as  to  mode  of  measuring  grain.  Frazier  v.  Warfield,  13 
Md.  279.  Of  ordinance  as  to  survey  of  lumber  before  sale.  Briggs  v.  Boat, 
7  Allen,  287. 

2  Guillotte  v.  New  Orleans,  12  La.  An.  432,  1857;  Page  v.  Fazakerly, 
36  Barb.  392.  But  as  to  forfeiture,  qucere,  in  absence  of  express  power,  and 
see  Phillips  v.  Allen,  41  Pa.  St.  481 ;  Mayor,  &c.  of  Mobile  v.  Yuille,  3  Ala. 
139. 


424  MUNICIPAL     CORPORATIONS.  [Ch.  XH. 

safety  and  convenience  may  require  regulations  of  this 
character ;  but  they  must  not,  unless  made  by  virture  of 
specific  authority,  be  unreasonable  or  improperly  in  re 
straint  of  trade.1  Power  to  make  by-laws  for  "the  good 
rule  and  government"  of  the  borough  (ante,  sec.  271),  has 
reference  to  the  government  of  the  borough  as  a  corpora- 
tion, and  the  making  of  regulations  for  carrying  into  effect 
the  purposes  for  which  it  was  incorporated  ;  but  it  does  not 
enable  a  town  council  to  carry  out  any  peculiar  ideas  of 
general  good  government,  and  to  impose  penalties  for  the 
doing  of  things  which  are  not  prohibited  by  any  public 
statute,  nor  by  the  common  law.5 

§  327.     Under  a  general  power  to  make  "needful  and 

1  Commonwealth  v.  Stodder,  2  Cush.  562,  1848,  where  the  subject  of  the 
power  of  cities  over  streets,  particularly  in  reference  to  omnibuses,  is  fully 
considered  by  Mr.  Justice  Dewey ;  Commonwealth  v.  Robertson,  5  Cush. 
438,  1850,  as  to  stoppages  in  streets  contrary  to  ordinance  ;  Baker  v.  City  of 
Boston,  12  Pick.  184,  1831 ;  Vanderbilt  v.  Adams,  7  Cow.  349  ;  lb.  385 ;  Aus- 
tin v.  Murray,  16  Pick.  126.  Power  to  a  city  ' '  to  regulate  the  running  of  rail- 
road cars,"  authorizes  the  adoption  of  an  ordinance  prohibiting  the  pro- 
pulsion of  cars  by  steam  within  the  corporate  limits.  Railroad  Company 
v.  Buffalo,  5  Hill  (N.  Y.)  209,  1843.  Post,  chapter  on  Streets,  sec.  565. 
In  Napman  v.  People,  19  Mich.  352,  1869,  a  lawful  arrangement  between 
a  railroad  company  and  an  omnibus  company  as  to  the  delivery  of  passen- 
gers was  held  to  be  beyond  municipal  interference. 

A  by-law  prohibiting  rapid  driving  in  the  streets  of  a  city  by  carters  and 
others  is  not  in  restraint  of  trade,  and  is  reasonable  and  valid ;  and  in  a 
prosecution  for  its  violation,  it  is  not  necessary  to  prove  that  any  individual 
was  actually  endangered  by  the  fast  driving.  As  the  mayor  and  aldermen 
have  no  authority  to  give  a  person  permission  to  violate  an  ordinance,  evi- 
dence of  such  permission,  as  well  as  evidence  of  the  defendant's  general 
character  as  a  careful  driver,  is  inadmissible.  Commonwealth  v.  Worcester, 
3  Pick.  462,  1826;  Commonwealth  v.  Stodder,  2  Cush.  562,  570,  1848;  Wash- 
ington v.  Nashville,  1  Swan,  177.     Post,  chapter  on  Streets,  sec.  565. 

There  is  no  obligation,  in  the  absence  of  a  valid  municipal  by-law  or  stat- 
ute, on  the  part  of  people  to  keep  roofs  char  of  snow,  or  to  detain  the  snow 
so  that  it  cannot  slide  into  the  street,  though  there  may  be,  it  seems,  such  a 
faulty  construction  of  roof,  as  on  proof  thereof,  would  involve  a  liability  on 
the  part  of  the  owner  or  occupier  for  accidents.  Lazarus  v.  Toronto,  19 
Upper  Can.  Q.  B.  13,  per  Robinson,  C.  J.  See  post,  sec.  788,  note,  and  cases 
cited. 

2  Addison  ou  Torts,  34;  Rex  v.  Westwood,  4  B  &  C.  781;  Reg.  v. 
Wood,  5  Ell.  &  Bl.  55. 


Ch.  xi.j       respecting   peace   and   safety.  425 

salutary  by-laws,"  a  city  ordinance  of  Boston,  requiring  the 
tenant  or  occupant,  or,  in  case  there  shall  be  no  tenant,  the 
owners  of  buildings  bordering  on  certain  streets,  to  clear 
the  snow  from  the  sidewalks  adjoining  their  respective 
buildings,  is  reasonable  and  valid.  It  was  objected  against 
this  ordinance  that  it  violated  the  fundamental  maxim,  that 
all  burdens  and  taxes  laid  upon  the  people  for  the  public 
good  shall  be  equal.  The  objection  was  overruled.  And  it 
was  justly  regarded  by  the  court  as  in  the  nature  of  a  police 
regulation,  requiring  a  duty  to  be  performed  highly 
salutary  and  advantageous  to  the  citizens  of  a  populous  and 
closely  built  city ,  and  imposed  upon  the  persons  named  be- 
cause they  are  so  situated,  as  that  they  can  promptly  and 
conveniently  perform  it ;  and  it  is  laid  not  upon  a  few,  but 
upon  a  numerous  class,  and  equally  upon  all  who  are 
within  the  description  composing  the  class  and  who  com- 
monly derive  a  peculiar  benefit  from  the  duty  required.  It 
would  doubtless  be  otherwise  if  the  ordinance  arbitrarily 
imposed  this  duty  upon  the  mechanics,  or  merchants,  or 
any  other  class  of  citizens  between  whose  convenience  and 
the  labor  required  there  is  no  natural  relation.1 

§  328.  The  power  to  make  "salutary  by-laws,"  with 
respect  to  the  use  of  streets,  will,  it  seems,  authorize  a  city 
to  pass  by-laws  regulating  the  removal  of  buildings,  and 
the  temporary  use  of  the  streets  and  highways  for  that 
purpose." 

§  329.  Ordinances  under  Police  Power  and  General 
Welfare  Clause. — Other  illustrations  of  what  a  municipal 
corporation  may  due  under  the  general  welfare  clause  in  its 
organic  act,  or  under  its  police  power  or  its  implied  right  to 

1  Goddard,  Petitioner,  &c,  16  Pick.  504,  1835;  Union  Railway  Company 
v.  Cambridge,  11  Allen,  287;  Kirby?>.  Boylston  Market  Association,  14  Gray, 
252.     Post,  sec.  788. 

3  Day  v.  Green,  4  Cush.  433,  437,  per  Shaw,  C.  J.  And  where  such  a  by- 
law prohibits  the  moving  without  a  license  granted  by  the  mayor  and  alder- 
men, a  license  granted  by  the  mayor  is  void,  even  though  the  board  .  f 
aldermen,  by  a  vote,  had  previously  undertaken  to  delegate  the  power  to 
grant  such  license  to  the  mayor  alone.  The  by-law  contemplates  that  the 
mayoi  and  aldermen  should  act  unitedly  as  one  body.     lb. 


42(5 


MUNICIPAL     CORPORATIONS.  |Ch.   XI. 


pass  by-laws,  or  under  a  general  grant  of  authority  for  that 
purpose,  may  be  here  given. 

Under  authority  "  to  ordain  and  publish  such  acts,  laws, 
and  regulations,  not  inconsistent  with  the  constitution  and 
laws  of  the  state  as  shall  be  needful  to  the  good  order  of  the 
city,"  it  can,  says  Howard,  J.,  "subject  to  these  restric- 
tions and  certain  statute  regulations,  establish  all  suitable 
ordinances  for  administering  the  government  of  the  city, 
the  preservation  of  the  health  of  the  inhabitants,  and  the 
convenient  transaction  of  business  within  its  limits,  and  for 
the  performance  of  the  general  duties  required  by  law  of 
municipal  corporations."1 

§  330.  Power  to  pass  such  ordinances  "to  maintain  the 
peace,  good  government,  and  order  of  the  city,  and  the 
trade,  commerce  and  manufactures  thereof,  as  the  council 
may  deem  expedient,  not  repugnant  to  the  constitution  and 
laws  of  the  state,"  authorizes  an  ordinance  prohibiting  the 
keeping  open  of  stores,  shops,  and  places  of  business  on 
Sunday,  if  its  provisions  do  not  conflict  with  state  legisla- 
tion.2   But  the  general  welfare  clause  does  not  authorize  a 

1  Per  Howard,  J.,  State  v.  Merrill,  37  Maine  (2  Heath),  229,  1853.  Such 
would  undoubtedly  be  the  proper  construction  if  this  were  the  only  power 
given  to  the  city  to  pass  ordinances  or  by-laws.  It  should  then  be  some- 
what liberally  construed.  But  if  such  a  general  grant  is  given  in  connec- 
tion with,  or  at  the  end  of,  a  long  list  of  specific  powers,  perhaps  so  ex- 
tended a  construction  might  not  then  be  due  to  it.  The  power  conferred  by 
general  welfare  clause  is  restricted  by  reference  to  other  provisions  of  the 
charter  or  constituent  act.  City  Council  v.  Plank  Road  Company,  31  Ala. 
76,  1857;  Mount  Pleasant  v.  Breeze,  11  Iowa,  399,  400,  1860,  per  Wright,  J. 

2  St  Louis  v.  Cafferata,  24  Mo.  94,  1856 ;  see  State  v.  Cowan,  29  I  b.  330 ; 
State  v.  Anis  (constitutionality  of  Sunday  laws  affirmed),  20  Mo.  214 ;  S.  P. 
Frolichstein  v.  Mobile,  40  Ala.  725,  1867;  Hudson  v.  Geary,  4  Rh.  Is.  485, 
1857;  Specht  v.  Commonwealth,  8  Pa.  St.  312;  Cincinnati©.  Rice,  15  Ohio, 
225;  Karwisch  v.  Atlanta,  44  Geo.  204,  1871.  In  the  case  of  the  City  Coun- 
cil v.  Benjamin,  2  Strob.  (South  Car.)  Law,  508,  1846,  it  was  decided  by  the 
Court  of  Appeals  of  South  Carolina,  that  an  ordinance  of  the  city  of 
Charleston,  prohibiting  "  public  exposures  for  sales,  or  sales  of  merchandise, 
on  Sunday,"  was  not  a  violation  of  that  section  of  the  state  constitution  which 
declares  that  "  the  free  exercise  and  enjoyment  of  rehgious  profession  or 
worship,  without  discrimination  or  preference,  shall  forever  hereafter  be 
allowed  within  this  state  to  all  mankind."  In  that  case  the  defendant  waa 
a  Jew,  and  the  city  was  not  denied  to  be  possessed  of  all  the  power  on  the 


Ch.  XL]       ORDINANCES     UNDER     WELFARE     CLAUSE.  407 

city  to  construct,  or  aid  in  constructing,  a  plank  road  or 
toll  bridge  built  by  a  private  companv  beyond  the  corporate 
limits  of  the  city.1 

§  331.  The  general  welfare  clause  to  pass  ordinances  for 
the  good  government,  &c,  of  the  corporation,  does  not  au- 
thorize an  ordinance  requiring  the  proprietor  of  a  theatre, 
circus,  or  other  exhibition  licensed  by  the  corporation,  to 
pay  a  peace  or  police  officer  of  the  place  two  dollars,  or 
any  sum,  for  each  night's  attendance  upon  such  place  for 
the  purpose  of  enforcing  order.  Such  an  ordinance  is  un- 
reasonable, and  can  only  be  passed  when  clearly  authorized.* 

§  332.  Where  a  city  corporation  is  authorized  "  to  ordain 
such  laws  not  inconsistent  with  the  constitution  and  laws  of 
the  state  as  shall  be  needful  to  the  good  order  of  the  city," 
it  may  pass  an  ordinance  imposing  a  penalty  upon  any  per- 
son who  shall  mutilate  or  destroy  any  ornamental  tree 
planted  in  the  streets,  lanes,  or  other  public  places  within 
the  limits  of  the  city."  Such  an  ordinance  is  not  inconsist- 
ent with  a  state  law  punishing  the  malicious  or  wanton 
destruction  of  trees  growing  for  ornament  or  use.  Under 
the  ordinance  it  is  not  necessary  to  allege  or  prove  that  the 
mutilation  was  malicious  or  wanton,  and  it  would  seem  to 
be  considered  that  it  was  no  defence  that  the  tree  alleged  to 
be  mutilated  was  upon  the  street  in  front  of  the  lot  of  the 
accused,  who  owned,  subject  to  the  public  easement,  ad 
medium  filum  via?.' 

subject  which  the  legislature  could  constitutionally  bestow.  In  the  case  of 
Columbia  v.  Duke  and  Marks,  cited  2  Strob.  530,  and  approved,  a  similar 
decision  was  made  at  nisi  prius  by  Mr.  Justice  Martin.  And  in  this  last  case 
is  was  further  ruled,  that  power  in  the  charter  to  "establish  such  by-laws 
as  may  tend  to  the  quiet,  peace,  safety,  and  good  order  of  the  inhabitants," 
autnorized  the  passage  of  such  an  ordinance.  Under  "  full  power  to  pass 
such  ordinances  as  the  city  council  shall  deem  expedient  for  the  govern- 
ment of  the  city,  not  contrary  to  the  constitution  of  the  state  or  the  United 
States,"  a  city  may  prohibit,  within  its  limits,  the  sale  of  liquor  on  Sunday. 
Megowan  v.  Commonwealth,  2  Met.  (Ky.)  3,  1859;  State  v.  Welch,  3G  Conn. 
215,  1869. 

1  City  Council  v.  Plank  Road  Company,  31  Ala.  76,  1857.  Ante,  sec.  106. 

*  Waters  v.  Leech,  3  Ark.  110,  1840.     Supra,  sec.  253. 

*  State  v.  Merrill,  37  Maine  (2  Heath),  329,  1853.     Contra  as  to  right  of 


428  MUNICIPAL     CORPORATIONS.  [Ch.  X1L 

333.  Under  a  general  power  to  pass  "any  other  by-laws 
for  the  well-being  of  the  city,"  its  council  may,  by  ordi- 
nance, prohibit  saloons,  restaurants,  and  other  places  of 
public  entertainment,  to  be  kept  open  after  ten  o'clock  at 
night.  The  objections  that  such  a  by-law  was  unreasonable, 
and  deprived  the  citizen  of  the  constitutional  right  of  "ac- 
quiring property,"  were  not  considered  to  be  well  taken. 
It  regulates,  but  does  not  deprive  the  party  of  his  rights.1 

§  334.  Power  "  to  regulate  the  police  of  the  city,"  and 
to  pass  ordinances  not  inconsistent  with  law,  authorizes  an 
ordinance  for  arresting  and  fining  vagrants,  although,  by 
the  general  law  of  the  state,  vagrants  may  be  proceeded 
against  before  a  justice  of  the  peace,  the  court  considering 
that  this  did  not  forbid  the  corporation  from  making  a  local 
regulation  on  the  same  subject  not  in  conflict  with  the  gen- 
eral law.2 

adjoining  owner.  Lancaster  v.  Richardson,  4  Lansing  (N.  Y.)  136,  1871, 
see  post,  sec.  524,  note.  The  case  in  Maine  is  a  quite  liberal  construction 
of  the  words  good  order.  But  it  is  necessary  that  cities  should  have  such 
an  authority,  and  the  power  to  pass  the  ordinance  could,  perhaps,  be  sus- 
tained as  incidental  to  the  power  of  the  city  over  its  streets  and  public  places. 
Post,  chapter  on  Streets. 

1  The  State  v.  Freeman,  38  N.  H.  426,  1859 ;  following  and  approving  on 
this  point,  State  v.  Clark,  8  Fost.  (N.  H.)  176;  Morris  v.  Rome,  10  Geo. 
532,1851;  Hudson  v.  Geary,  4  Rh.  Is.  485,1857.  '-It  is  an  unavoidable 
consequence  of  city  ordinances,  that  they  in  some  degree  interfere  with  the 
unlimited  exercise  of  private  rights."  Per  BeU,  J.,  in  State  v.  Freeman,  38 
N.  H.  428;  State  v.  Welch,  36  Conn.  215,  1869. 

2  St.  Louis  v.  Bentz,  11  Mo.  61,  1857;  distinguished  from  Jefferson  City 
v.  Courtmire,  9  lb.  692,  which  was  a  summary  proceeding  for  an  indictable 
offence.  See  State  v.  Cowan,  29  Mo.  330;  Byers  v.  Commonwealth.  42  Pa. 
St.  89,  per  Strong,  J. ;  Shafer  v.  Mumma,  17  Md.  331,  1861.  Supra,  sec. 
302. 

A  statute  by  which  "two  or  more  overseers  of  the  town"  were  author- 
ized to  commit  to  the  workhouse  until  discharged  by  law.  by  writing  under 
their  hands,  to  be  there  employed  and  governed  according  to  the  rules  and 
orders  of  the  house,"  &c,  "  all  persons,  able  of  body  to  work,  and  not  hav- 
ing estate  or  means  otherwise  to  maintain  themselves,  who  refuse  or  neglect 
to  do  so,  live  a  dissolute,  vagrant  life,  and  exercise  no  ordinary  calling  or 
lawful  business  sufficient  to  gain  an  honest  livelihood,"  does  not  violate  the 
constitutional  right  to  "life  and  liberty,"  or  the  right,  in  "  criminal  pro- 
ceedings, to  be  heard  by  counsel,  confronted  with  witnesses,"  &c.  The 
court  did  not  regard  it  as  a  criminal  proceeding,  but  as  a  reformatory  or 


Cn.  XII.]      GENERAL     WELFARE    CLAUSE— CONTINUED.        439 

§  335.  By  virtue  of  its  police  power,  a  municipal  cor- 
poration may  pass  an  ordinance  imposing  a  fine  upon  the 
owner  of  any  animal  found  eslray  or  at  large  within  the 
limits  of  the  corporation. 

§  336.  If  a  municipal  corporation  has,  by  its  charter, 
power  to  pass  ordinances  to  preserve  the  peace  and  good 
order  of  the  place,  this  gives  it  authority  to  provide  for  the 
punishment,  in  the  manner  allowed  by  its  charter,  of  persons 
who  shall  rescue,  or  attempt  to  rescue,  prisoners  from  the 
custody  of  the  municipal  officers.'  But  the  general  power, 
though  expressly  conferred,  to  enact  by-laws  for  the  good 
government  of  the  town,  does  not  confer  the  power  to  levy 
taxes  of  any  kind,  not  even  upon  retailers  of  ardent  spirits.3 

§  337.  General  Welfare  Clause — Continued. — The  gen- 
eral welfare  clause,  in  a  charter  empowering  the  city  council 
to  pass  such  other  ordinances  as  appear  necessary  for  the 
security  of  the  city,  authorizes  an  ordinance  regulating  the 
mode  of  keeping  and  sale  of  gunpowder  within  the  limits 
of  the  corporation,  such  as  requiring  all  gunpowder  brought 
into  the  city  to  be  conveyed  to  the  public  magazine  of  the 

correctional  one,  so  far  as  the  person  proceeded  against  was  concerned,  and 
desigued  to  protect  the  community  from  becoming  chargeable  with  the  per- 
son's support.  Adeline  Nott's  Case,  11  Maine,  208,  1834;  S.  P.  Portland  v. 
Bangor,  42  Maine,  403,  1856,  Bice,  J.,  dissenting.  See  Byers  v.  Common- 
wealth, 42  Pa.  St.  89.  In  a  late  case  in  Illinois,  the  Supreme  Court  of  that 
state  decided  that  the  act  creating  the  Reform  School  was  unconstitutional, 
and  that  the  act,  so  far  as  it  restrained  liberty  for  any  cause  except  actual 
crime,  was  in  violation  of  the  Bill  of  Rights.  People  v.  Turner,  10  Am. 
Law  Reg.  (N.  S.)  366,  and  approving  note  of  Judge  Red  field  ;  S.  C,  55  111. 
280. 

1  Municipality  v.  Blanc,  1  La.  An.  385,  1846;  Case  v.  Hall,  21  111.  632; 
Commonwealth  v.  Bean,  14  Gray,  52;  Commonwealth  v.  Curtis,  9  Allen, 
266;  Roberts  v.  Ogle,  30  111.  459;  McKee  v.  McKee,  8  B.  Mon.  433,  1848; 
Waco  v.  Powell  (hogs  at  large),  32  Texas,  258,  1869.  Ante,  sec.  255,  note. 
Supra,  sec.  282.  Construction  of  ordinance  prohibiting  the  suffering  of 
animals  to  run  at  large,  and  what  must  be  shown  to  subject  a  person  to 
liability  under  such  an  ordinance.  Collinaville  v.  Scanland,  111.  Sup.  Court, 
1872. 

*  Independence  v.  Moore,  32  Mo.  392,  1862 

3  Commissioners  of  Ashville  v.  Means,  7  Ire.  (Law)  406,  1847;  Ex  parU 
Burnett,  30  Ala.  461,  1857.     Post,  chap.  XIX. 


430  MUNICIPAL    CORPORATIONS  [Ch.  XII. 

city,  except  when  it  is  to  be  retailed,  and  then  to  be  kept  in 
limited  quantities  and  in  secure  canisters.  And  it  was  so 
held,  notwithstanding  the  point  was  made  in  argument  that 
the  general  welfare  clause  in  the  charter  could  uot  enlarge 
the  powers  of  the  corporation  further  than  is  necessary  to 
carry  into  effect  the  specific  grants  of  power.1 

§  338.  Municipal  corporations,  with  power  to  provide 
for  the  safety  of  their  inhabitants,  may  prohibit  the  throw- 
ing of  heavy  or  dangerous  articles,  from  the  upper  stories 
of  buildings,  into  the  streets  or  open  spaces  near  them, 
where  persons  are  in  the  habit  of  passing  ;  and  may  estab- 
lish fire  limits,  and  prevent  erection  therein  of  wooden 
building.* 

§  339.  Under  authority  to  make  police  regulations,  or 
to  pass  by-laws  for  the  good  rule  and  government  of  the 
corporation,  it  has  the  power  to  require  hoistioays  inside 
of  stores  (usually  places  of  public  resort)  to  be  enclosed  by 
a  railing,  and  closed  by  a  trap  door  after  business  hours 
each   day.      It  was  justly  regarded  as  a  reasonable    po- 

1  Williams  v.  Augusta,  4  Geo.  509,  1848;  Frederick  v.  Augusta,  4  /  b. 
561,  where  the  charter  of  Augusta  is  more  fully  given. 

2  City  Council  v.  Elford,  1  McMullen  (South  Car.)  Law,  234,  1841 ; 
Brady  v.  Insurance  Company,  11  Mich.  425;  Douglas  v.  Commonwealth,  2 
Rawle,  262;  Wadleigh  v.  Gilman,  12  Maine,  403;  Vanderbilt  v.  Adams,  7 
Cow.  349,  352,  per  Woodruff,  J.,  arguendo.  Instance  of  a  want  of  power  to 
restrict  erection  of  wooden  buildings.  Mayor,  &c.  v.  Thorne,  7  Paige,  261. 
Cities  may  constitutionally  be  authorized  to  prevent  the  erection  of  wooden 
buildings  in  certain  portions  thereof.  Respublica  v.  Duquet,  2  Yeates  (Pa.) 
493.  In  Wadleigh  v.  Gilman,  supra,  it  was  decided  that  the  removal  of  a 
wooden  building  to  the  prohibited  district,  or  even  from  one  part  of  the 
district  to  another,  was  within  the  meaning  of  the  term,  erection,  as  used  in 
the  ordinance.  "The  mischief,"  says  Weston,  C.  J.,  "did  not  consist  in 
the  act  of  erecting,  but  in  the  continuance  of  the  erection.  The  ordinance 
did  not  meddle  with  erections  as  they  stood;  this  would  have  transcended 
their  power."  Difference  between  "  erecting  "  and  "repairing."  Brady® 
insurance  Company.  11  Mich.  425,  449,  opinion  of  Campbell,  J. ;  Brown  v. 
Hunn,  27  Conn.  332 ;  Booth  v.  State,  4  Conn.  65 ;  Tuttle  v.  State.  lb.  68;. 
Stewart  v.  Commonwealth,  10  Watts,  307.  Remedy  against  wrong-doer, 
by  private  action  in  favor  of  an  adjoining  owner  specially  injured  by  a 
violation  of  a  statute  in  relation  to  the  erection  of  wooden  buildings. 
Aldrich  v.  Howard,  7  Rh.  Is.  199.     See  Index— Fire. 


Ch.  XII.  ]  MODE     OF    ENFORCING     ORDINANCES.  431 

lice  regulation   not   unnecessarily  interfering  with  private 
rights.1 

§340.  Power  "  to  prevent  disturbances  and  disordeily 
assemblages,  and  maintain  the  good  government  of  the  city," 
authorizes  it  to  take  measures  to  preserve  the  peace  and  to 
protect  the  lives  and  property  of  the  citizens,  and  the  acts 
of  the  city  in  procuring  a  loan  of  arms  and  giving  a  bond 
for  their  return,  are  valid  and  binding  upon  it.a  Authority 
to  preserve  the  peace  and  quiet  of  the  place  authorizes  an 
ordinance  forbidding  "all  disorderly  shouting,  dancing, 
&c,  in  the  streets  and  public  places,"  though  such  conduct 
violates  no  existing  state  law.3 

Mode  of  Enforcing  Ordinances. 

§  341.  Civil  Actions  and  Complaints. — In  the  old  cor- 
porations in  England,  by-laws  were  usually  made  in  virtue 
of  their  implied  power ;  they  did  not  extend  to  matters 
criminal  in  their  nature,  and  could  only  be  enforced,  unless 
by  virtue  of  a  statute  or  valid  custom,  by  fines  or  pecuniary 
penalties,  commonly  for  a  small  sum,  and  always,  or  almost 
always,  in  a  fixed  or  certain  amount/     So,  by  the  Muni- 

1  Mayor,  &c.  of  New  York  v.  Williams,  15  N.  Y.  502,  1859.  Johnson, 
J.,  observes:  "  The  danger  is  not  confined  to  the  owner  and  ordinary  occu- 
pants of  the  building.  The  ordinance,  in  that  respect,  stands  on  the  same 
footing  as  a  regulation  prohibiting  a  well  or  cistern  in  a  man's  yard  unpro- 
tected by  curb  or  cover,  the  reasonableness  of  which  could  not  be  doubted. 
In  case  of  fire,  these  openings  would  tend  directly  and  powerfully  to  allow 
the  fire  to  extend  through  all  parts  of  the  building,  and,  if  left  uncovered, 
would  also  tend  to  endanger  those  whom  duty  might  require  to  enter  to 
effect  the  extinguishment  of  the  fire."  Paige,  J.,  considered  the  ordinance 
the  same  in  principle  as  fire  laws,  prescribing  the  height,  thickness  of 
walls,  and  materials  of  building  within  the  city. 

2  State  v.  Buffalo,  2  Hill  (N.  Y.)  434,  1842;  New  Orleans  v.  Costello,  14 
La.  An.  37. 

3  Washington  v.  Frank,  1  Jones  (N.  C.)  Law,  436,  1854.  As  to  what 
regulations  of  this  kind  are  necessary,  "much,"  says  the  court,  "must  be 
left  to  the  judgment  and  discretion  "  of  the  corporate  authorities.  lb. 
State  v.  Bell,  13  Ire.  (Law)  378.     Post,  chap.  XIII. 

4  Qcev.  Wilden,  Lutw.  1320,  1324;  Wood  v.  Searl,  Bridg.  139;  Piper 
v.  Chappell,  14  M.  &  W.  024;  Rawlinson  on  Corp.  665,  note.  Seepcst, 
chapter  on  Municipal  Courts. 


432  MUNICIPAL     CORPORATIONS.  [Ch.  XII. 

cipal  Corporations  Act  of  1835,  the  council  are  empowered 
to  make  such  by-laws  as  to  them  shall  seem  meet  for  the 
good  rule  and  government  of  the  borough,  and  for  the  pre- 
vention and  suppression  of  all  such  nuisances  as  are  not 
punishable  by  act  of  parliament  in  force  in  the  borough,  and 
to  appoint  such  fines  as  they  shall  deem  necessary  for  the 
prevention  and  suppression  of  such  offences,  with  the  pro- 
viso that  no  fine  shall  exceed  the  sum  of  five  pounds. x  The 
act  provides  that  prosecutions  for  a  breach  of  by-laws  made 
under  it,  shall  be  commenced  within  three  months  after  the 
commission  of  the  offence ;  that  the  charge  shall  be  made 
on  oath ;  that  a  summons  shall  issue  and  be  served,  with 
power  to  the  magistrate  to  proceed  without  the  appearance 
of  the  defendant,  or  to  issue  a  warrant  for  his  arrest ;  that 
if  convicted,  the  penalty  shall  be  paid  either  immediately  or 
within  such  period  as  the  magistrate  shall  think  fit ;  that  it 
maybe  levied  by  distress  and  sale  of  the  goods  and  chattels 
of  the  offender,  and  for  want  of  sufficient  distress  the 
offender  may  be  imprisoned  for  a  term  not  exceeding  one 
month,  the  imprisonment  to  cease  upon  payment  of  the 
sum  due.2  It  is  suggested  that  the  remedy  thus  prescribed 
is  cumulative,  and  will  not  debar  the  corporation  from  avail- 
ing itself  of  the  usual  common  law  mode  of  enforcing  a  by- 
law by  action  of  debt  or  assumpsit.'  But  the  point  seems 
not  to  have  been  yet  adjudged. 

§  342.  Aside  from  statutory  regulation,  the  general 
method  of  enforcing  a  by-law  in  England  is,  as  just  stated, 
by  bringing,  in  the  name  of  the  proper  party  or  corporation, 
an  action,  in  the  proper  court,  against  the  person  who  has 
violated  the  by-law,  to  recover  the  penalty  which  it  imposes, 
and  this  action  may  be  either  debt  or  assumpsit.  By  the 
common  law,  assumpsit  may  be  maintained  for  the  breach 
of  any  duty  which  the  defendant  has  been  legallv  liable  to 

1  5  and  6  Will.  IV.  chap.  LXXVI.  sec.  90.     Ante,  sees.  16,  270. 

*  lb.  sec.  91;  sees.  127-133.     Supra,  sec  271. 

3  Rawlinson  on  Corp.  (5th  ed.)  167,  note.  See  Adley  v.  Reeves,  2  Maule 
&  Sel.  61 ;  Bodwic  v.  Fennell,  1  Wils.  233.  On  the  other  hand,  Mr.  Grant 
is  of  opinion  that  the  remedy  prescribed  by  the  act  is  exclusive,  and  super- 
sedes th9  common  law  remedy  of  debt  or  assumpsit  for  the  amount  of  the 
fine  or  penalty.     Grant  on  Corp.  364.     Supra,  sees.  271  275. 


Ch   XII.]  MODE     OF     ENFORCING     ORDINANCES.  433 

perform  in  favor  of  the  plaintiff,  the  law  implying  a  promise 
to  perform  the  particular  act,  and  hence  no  principle  was 
violated  in  holding  that  assumpsit  would  lie  to  recover  the 
penalty  of  a  by-law.  As  the  penalty  was  for  a  sum  certain, 
and  was  considered  to  be  in  the  nature  of  liquidated  dam- 
'ages,  an  action  of  debt  would  also  lie  to  recover  the  amount 
of  the  penalty  ;  but  where  the  by-law  itself  provided  that 
the  penalty  should  be  recovered  by  debt,  then  that  form  of 
action  alone  could  be  maintained.  But,  aside  from  statute 
authority  or  a  valid  custom,  it  was  not  competent  for  the 
by-law  to  provide  that  its  penalty  should  be  recovered  by 
'"distress  and  sale"  of  goods,  that  being  contrary  to  the 
common  law.1 

§  343.  In  this  country,  the  courts  hold  that  where  the 
mode  of  enforcement  is  prescribed  by  the  charter,  that  mode 
must  be  pursued  ;2  but  if  the  mode  or  form  of  action  is  not 
prescribed,  then  the  recovery  of  the  penalty  or  line  for  the 
violation  of  a  municipal  ordinance  may  be  as  at  common 
law,  by  an  act  of  debt  or  assumpsit,  or  where  these  forms 
are  abrogated,  by  a  civil  action  in  substance  the  same.3 

1  Willc.  164-181;  1  Saund.  PL  and  Ev.  683;  2  Wheat.  Selw.  1178;  2 
Chitty  PI.  401,  where  form  of  declaration  in  debt  is  given ;  Adley  v.  Reeves, 
2  M.  &  S.  60.  The  law  implies  a  promise  on  the  part  of  a  corporator  to  pay 
all  penalties  incurred  for  his  violation  of  by-laws  ;  and  if  the  mode  of  en- 
forcing such  penalties  is  not  pointed  out,  the  corporation  may  sue  therefor 
in  any  competent  court.  Columbia  v.  Harrison,  3  Const.  (South  Car.)  Rep. 
213,  per  Nott,  J.     Supra,  sees.  270-280. 

2  Weeks  v.  Foreman,  1  Harris.  (N.  J.)  237,  1837;  Ewbanks  v.  Ashley,  36 
111.  177,  1864;  Israel®.  Jacksonville,  1  Scam.  (111.)  290;  Williamson  v.  Com- 
monwealth, 4  B.  Mon.  146,  151,  1843.  An  action  may  be  brought  for  the 
fines  and  penalties  incurred  for  the  violation  of  ordinances,  and  it  is  not 
necessary  that  the  fine  be  assessed  before  the  suit  is  brought.  King  v.  Jack- 
sonville, 2  Scam.  (111.)  306.  In  Weeks  v.  Foreman,  1  Harris.  (N.  J.)  237, 
1837,  it  was  held  that,  although  certain  corporate  officers  were  ex  officii)  jus- 
tices of  the  peace  within  the  city,  with  power  to  take  cognizance  of  viola- 
tions of  by-laws,  they  could  not  entertain  or  try  actions  of  debt,  to  recover 
a  debt  or  penalty  for  a  breach  of  an  ordinance,  although  is  was  conceded 
that  they  had  jurisdiction  of  the  quasi  criminal  proceeding,  founded  upon  a 
complaint  or  information,  resulting  in  what  is  technically  called  a  convic- 
tion ;  but  quaere.     Supra,  sees.  270-287. 

*  Ewbanks  v.  Ashley,  06  111.  178,  1864;  Israel  v.  Jacksonville,   1   Scam. 
(111.)  290 ;  Coates  v.  Mayor,  7  Cow.  585,  608,  1827.     Unless  it  is  otherwise 
28 


434  MUNICIPAL     CORPORATIONS.  [Ch.  XII. 

And  where  such  an  action  is  brought,  the  proceeding  is 
civil  and  not  criminal,  and  the  rules  of  proceedure  in  civil 
cases,  unless  otherwise  provided,  are  applicable  to  it.1  The 
penalties  to  ordinances  are  often  fixed  upon  a  movable 
scale,  and  this  would  appear  to  be  done  under  the  supposi- 
tion that  they  will  be  enforced,  not  by  a  common  law 
action  in  the  common  law  courts  to  recover  the  amount  of 
the  penalty,  but  by  a  complaint  or  proceeding  before  the 
proper  municipal  magistrate,  who  will,  within  the  pre- 
scribed limits,  determine  the  amount  of  the  fine  or  penalty 
to  be  paid,  by  reference  to  the  circumstances  of  the  particular 
case. 

§  344.  Nature  of  Proceeding,  Civil  or  Criminal. — 
Where,  instead  of  a  civil  action  to  recover  the  pecuniary 
fine  or  penalty,  the  proceeding  is  in  the  nature  of  a  com- 
plaint for  the  violation  of  the  ordinance,  this  has  sometimes 
been  considered  to  be  a  criminal  or  quasi  criminal,  and  not 
a  civil,  proceeding.  The  cases  on  this  subject,  however,  are 
not  harmonious,  but  the  difference  in  them,  to  some  extent, 
depends  upon  the  character  of  the  act  or  offence  charged, 
the  nature  of  the  charter,  and  the  legislation  in  the  particular 
state  as  to  the  extent  of  jurisdiction  intended  to  be  con- 
ferred upon  the  municipal  authorities.2  The  constitution  of 
Georgia  declares  that  "trial  by  jury,  as  heretofore  used  in 
this  state,  shall  remain  inviolate."  It  was  claimed  that  the 
legislature  could  not  constitutionally  confer  on  the  city 
council  the  power  to  pass  an  ordinance  inflicting  a  fine  for 
its  violation  where  the  guilt  of  the  party  was  to  be  tried  by 
the  council,  without  a  jury.  The  court  held  that  the  objec- 
tion was  not  sound,  observing  that  violations  of  ordinances 

provided  by  statute  or  charter,  it  is  considered  that  corporations  have  an 
inherent  power  to  provide  for  the  recovery  of  a  penalty  by  an  action  of  debt 
in  their  own  courts.  Hesketh  v.  Braddock,  3  Burr.  1858;  Barter  v.  Com- 
monwealth, 3  Pa.  (Pen.  &  W.)  253.     Supra,  sec.  275. 

1  lb.;  Municipality  v.  Catting,  4  La.  An.  335;  Lewiston  v.  Proctor,  23 
111.  533,  18G0;  Quincy  v.  Ballance,  30  111.  185;  Davenport  v.  Bird,  Iowa 
Supreme  Court,  December  Term,  1871 ;  Williamson  v.  Commonwealth,  4 
B.  Mon.  146,  151,  1843. 

2  Wayne  County  v.  Detroit,  17  Mich.  390;  People®.  Detroit,  18  Mich.  445 
Davenport  v.  Bird,  34  Iowa.  December  Term,  1871.  See  chapter  on  Mu 
nicipal  Courts.  2>ost.     Supra,  sees.  281,  300. 


Cn.  XII.]  MODE     OF     ENFORCING     ORDINANCES.  433 

are  not  criminal  cases  within  the  meaning  of  the  state  con- 
stitution, and  '"that,  inasmuch  as  the  right  of  trial  by  jury 
existed  in  England,  and  was  secured  by  Magna  Chorta, 
and  municipal  corporations  in  that  country  enforced  their 
by-laws  by  pecuniary  penalties,  in  a  summary  manner, 
and  the  same  right  being  conferred  upon  similar  corpora- 
tions in  this  state  anterior  to  the  adoption  of  the  constitu- 
tion, and  constantly  exercised,  "  the  right  of  trial  by  jury, 
as  heretofore  used  in  this  state,"  was  not  violated  by  the 
city  council  of  Augusta,  by  the  imposition  of  the  penalty 
for  the  breach  of  the  local  police  regulations  of  that  city."1 

§  345.  On  the  other  hand,  in  Massachusetts,  prosecu- 
tions for  breaches  of  by-laws  or  ordinances  made  to  enforce 
police  regulations  are  regarded  as  substantially  public 
prosecutions,  and  in  such  prosecutions  it  is  competent, 
though  confessed  not  to  be  very  just,  to  disallow  the  de- 
fendant costs.  Applying  this  doctrine,  it  is  held  that  a 
statute  providing  that  prosecutions  for  violations  of  city 

1  Williams  v.  Augusta  (gunpowder  ordinance),  4  Geo.  509,  1848,  p&r 
Warner,  J.,  approving  Low  v.  Commissioners  of  Pilotage,  R.  M.  Charlt. 
(Geo.)  316;  Flint  River  Steamboat  Company??.  Foster,  5  Geo.  194;  Floyd  v. 
Commissioners,  &c.,  14  Geo.  354;  Kip  v.  Patterson,  2  Dutch.  (N.  J.)  298; 
Keeler  v.  Milledge,  4  Zab.  142;  Shafer v.  Mumma,  17  Md.  331.  "Summary 
convictions  for  petty  offences  against  statutes  were  always  sustained,  and 
they  were  never  supposed  to  be  in  conflict  with  the  common  law  right  to  a 
trial  by  jury."  Per  Strong,  J.,  Byers  v.  Commonwealth,  42  Pa.  St.  89,  94, 
1862.  In  the  case  last  cited,  the  extent  of  the  right  of  jury  trial  at  common 
law  is  learnedly  examined  by  Mr.  Justice  Strong.  See,  also,  Dunsmore's 
Appeal,  52  Pa.  St.  374;  Rhines  v.  Clark,  51  Pa.  St.  96,  1865.  Compare, 
Plimpton  v.  Somerset,  33  Vt.  283,  1860.  See  post,  Municipal  Courts.  A 
statute  requiring  security  for  costs,  in  prosecutions  for  "penal  statutes,' 
does  not  embrace  prosecutions  under  city  ordinances  which  impose  penalties 
for  their  violation,  such  ordinances  not  being  "  statutes"  within  the  mean- 
ing of  the  act.  Lewistown  v.  Proctor,  23  111.  533,  1860;  S.  P.  Quincy  r. 
Ballance,  30  lb.  185.  And  see,  also,  Municipality  v.  Cutting,  4  La.  An. 
535;  Ewbanksw.  Ashley,  36  111.  177;  Wayne  County  v.  Detroit,  17  Mich. 
390;  People  v.  Detroit,  18  Mich.  465,  construing  the  phrase  <%penal  laws" 
as  used  in  the  Michigan  constitution.  Phrase  "municipal  fine,"  in  the 
constitution  of  California,  construed.  People  v.  Johnson,  30  Cal.  98,  1866. 
Violations  of  ordinances  imposing  fines  and  penalties  are  in  the  nature  of 
torts,  and  actions  for  such  violations  may  be  prosecuted  against  one  or 
more  of  the  offending  parties — they  need  iot  all  be  joined.  President,  &.c. 
v.  Holland,  19  111.  271,  1857. 


436  MUNICIPAL     CORPORATIONS.  [Ch.  XII. 

ordinances  in  the  name  of  the -state  or  commonwealth  is  not 
unconstitutional,  notwithstanding  the  result  is  that  the  de- 
fendant does  not  recover  costs  on  acquittal.1 

§  346.  Mode  of  Pleading  Ordinances. — The  courts, 
unless  it  be  the  courts  of  the  municipality,  do  not  judicially 
notice  the  ordinances  of  a  municipal  corporation,  unless 
directed  by  charter  or  statute  to  do  so.*    Therefore,  such 

1  Goddard,  Petitioner,  16  Pick.  504,  1835;  Commonwealth  v.  Worcester, 
3  Pick.  462.  "If,"  says  Chief  Justice  Shaw,  in  the  case  first  cited,  "  the 
prosecution  were  to  enforce  a  private  right  by  the  city,  there  would  be 
weight  in  the  objection,  and  it  would  stand  on  different  grounds."  16  Pick. 
508.  See  Commonwealth  v.  Gray,  5  Pick.  44 ;  Commonwealth  v.  Fakey,  5 
Cush.  408.  Similar  observations  in  relation  to  making  sidewalks,  by  Ford, 
J.,  in  Paxon  v.  Sweet,  1  Green  (N.  J.)  196,  200,  1832.  So,  in  New  Hamp- 
shire, a  public  prosecution  for  an  offence  made  penal  by  a  city  ordinance 
because  of  its  supposed  evil  consequences  to  society — as,  for  example,  the 
offence  of  unlawfully  keeping  a  bowling  alley — is  considered  to  be  a  criminal, 
and  not  a  civil,  proceeding.  State  v.  Stearns,  11  Fost.  (N.  H.)  106,  1855. 
Fink  v.  Milwaukee,  17  Wis.  26,  1863,  is  decided  upon  the  basis  that  a  prose- 
cution of  a  party  for  the  violation  of  a  city  ordinance,  where  the  penalty  is 
a  fine,  is  a  criminal  prosecution  to  which  the  bill  of  rights  applies,  which 
declares  that,  "in  all  criminal  prosecutions,  the  accused  shall  be  entitled 
to  demand  the  nature  and  cause  of  the  accusation  against  him."  But  a 
principle  so  broad,  it  is  believed,  can  hardly  be  maintained  where  the  act 
charged  is  not  a  crime  at  common  law  or  in  its  essential  nature.  See  chap- 
ter on  Municipal  Courts,  post.  In  Indiana  an  action  to  recover  the  penalty 
of  a  by-law,  though  a  warrant  for  the  arrest  of  the  defendant  be  issued  and 
served,  is  considered  to  be  a  civil  suit,  and  governed  by  the  rules  of  practice 
in  such  suits.  Goshen  v.  Croxton,  34  Ind.  237,  1870.  Ante,  sees.  300-303, 
and  notes. 

2  Trustees  v.  Leffler,  23  111.  90;  Mooney  v.  Bennett,  19  Mo.  551,  1854; 
New  Orleans  v.  Bondo,  14  La.  An.  303,  1859 ;  Harker  v.  Mayor,  17  Wend. 
199,  1837;  Case  v.  Mobile,  30  Ala.  538,  1857;  People  v.  Mayor,  &c.  of  New 
York,  7  How.  Pr.  R.  81,  1851;  Cox  v.  St.  Louis,  11  Mo.  431,  1848;  Garvin  v. 
Wells,  8  Iowa,  286;  Goodrich  v.  Brown,  30  Iowa,  291,  1870.  In  England, 
when  an  action  on  a  by-law  founded  on  a  custom  is  brought  in  a  court  of 
the  municipality  the  court  will  take  judicial  notice  of  it,  but  in  an  action  in 
the  Superior  Courts  the  custom  and  the  by-law  must  be  set  out,  for  these 
courts  will  not  take  notice  of  them.  Willc.  166,  pi.  403;  II.  172,  pi.  423; 
lb.  173,  pi.  425 ;  Broadnac's  Case,  1  Vent.  196 ;  Barber  Surgeons  v.  Pelsou, 
2  Lev.  252;  Norris  v.  Staps,  Hob.  211.  In  Conboy  v.  Iowa  City,  2  Iowa, 
90,  it  was  held  that  the  mayor,  on  whom  was  conferred  exclusive  jurisdic- 
tion of  the  violation  of  the  ordinances  of  the  city,  was  authorized  to  take 
judicial  notice,  ex  officio,  of  the  city  ordinances.  The  provision  of  a  city 
charter  that  its  published  and  printed  ordinances  shall  be  received  in  evi- 


Oh.  XII. ]  MODE     OF    ENFORCING     ORDINANCES.  437 

ordinances,  when  sought  to  be  enforced  by  action,  or  when 
set  up  by  the  defendant  as  a  protection,  should  be  set  out 
in  the  pleading.  It  is  not  sufficient  that  they  be  referred  to 
generally  by  the  title  or  section.  It  is,  however,  believed  to 
be  sufficient,  in  the  absence  of  special  legislative  provision 
prescribing  the  manner  of  pleading,  to  set  forth  the  legal 
substance  of  that  part  of  the  ordinance  alleged  to  have  been 
violated,  it  being  advisable,  for  purposes  of  indentification, 
to  refer  also  to  the  title,  date,  and  section.  The  liberal  rules 
of  pleading  and  practice  which  characterize  modern  judicial 
proceedings  should  extend  to,  and  doubtless  would  be  held 
to  embrace  suits  and  prosecutions  to  enforce  the  by-laws  or 
ordinances  of  municipal  corporations.1 

§  347.  Requisites  of  Complaints. — Under  a  charter  au- 
thorizing "complaint"  to  be  made  of  the  violation  of 
ordinances,  but  not  prescribing  the  mode  or  requisites,  a 
complaint  is  not  in  the  nature  of  an  information  by  a 
common  informer,  and  the  same  strictness  is  not  required 
as  in  an  information  or  indictment.  "  It  is  sufficient  if  it 
sets  out  with  clearness  the  offence  charged,  and  the  sub- 
stance of  that  part  of  the  ordinance  which  has  been 
violated,  with  a  reference  to  the  title,  date  or  section."3 

dence  in  all  courts  without  proof,  does  not  dispense  with  the  necessity  of 
making  them  part  of  the  record  in  order  to  bring  them  to  the  knowledge  of 
an  appellate  court.  Cox  v.  St.  Louis,  11  Mo.  431,  1848;  New  Orleans  v. 
Bondo,  14  La.  An.  303,  1859. 

1  Harker  v.  Mayor,  &c.  17  Wend.  199,  1837.  See  Stokes  v.  Corporation 
of  New  York,  14  Wend.  87;  Mooney  v.  Kennett,  19  Mo.  551,  1854.  In 
justifying,  the  defendant  must  set  out  in  his  plea  or  answer  the  ordinance, 
or  so  much  thereof  as  will  show  on  what  the  defence  rests.  lb.  ;  Keeler  v. 
Milled ge,  4  Zabr.  (N.  J.)  142,  1857.  It  is  sufficient  to  set  out  the  substance 
of  that  part  of  the  ordinance  which  has  been  violated,  with  a  reference  to 
the  title,  date,  and  section.  lb.  ;  approved,  Kip  v.  Patterson,  2  Dutch. 
(N.  J.)  298.  Regularly,  the  by-law  or  its  substance  should  be  set  forth. 
Case  v.  Mobile,  30  Ala.  538,  1857;  Charleston  v.  ('bur,  2  Bailey  (South 
Car.)  164.  In  England,  the  by-law  itself  must  be  fully  set  out  in  an  action 
of  debt  upon  it,  and  not  by  way  of  recital;  but  in  assumpsit  upon  the  same 
by-law,  latitude  is  allowed.  Willcock,  173,  pi.  425.  But  in  this  country  it 
is  said  that  "it  is  not  necessary  to  hold  to  the  strictness  anciently  required." 
Keeler  v.  Millege,  4  Zabr.  142.  In  Indiana,  before  the  act  of  1867,  it  was 
necessary  to  file  with  complaint  copy  of  ordinance  or  section  thereof  alleged 
to  have  been  violated.  Green  v.  Indianapolis,  25  Ind.  490;  Whitson  v. 
Franklin,  34  Ind.  392,  1S70. 

•  Keeler  v.  Milledge,  4  Zabr.  (N.  J.)  142,  1857;  approved,  Kip  v.  Patter- 


438  MUNICIPAL    CORPORATIONS.  [Ch.  XII. 

§  348.  In  an  action  or  proceeding  to  recover  a  penalty 
for  the  violation  of  a  by-law  or  ordinance  of  a  corporation, 
the  declaration  or  complaint  should  state  facts  which  make 
the  liability  of  the  defendant  distinctly  to  appear.1  And 
regularly,  as  before  stated,  the  by-law  should  be  set  forth 

son,  2  Dutch.  298;  City  Council  <o.  Seeba,  4  Strob.  (South  Car.)  Law,  319; 
Commonwealth  v.  Bean,  That.  85;  compare,  Fink  v.  Milwaukee,  17  Wis. 
26,  1^63;  see,  also,  Commonwealth  v.  Bean,  14  Gray,  52;  Deitz  v.  City,  1 
Colorado,  323;  Napman  v.  People,  19  Mich.  352,  1869;  Goshen  v.  Croxton, 
34  Ind.  239,  1870;  Whitson  v.  Franklin,  34  Ind.  392,  1870.  By  statute, 
prosecutions  for  the  violations  of  the  ordinances  of  Boston  may  be  prose- 
cuted in  the  name  of  the  commonwealth  ;  and  it  is  decided  that  in  a  com- 
plaint for  such  a  violation  it  is  not  sufficient  that  it  concludes  "against 
the  form  of  the  by-laws  of  the  said  city,"  but  it  must  conclude  also  against 
the  form  of  the  statute.  Commonwealth  v.  Gay,  5  Pick.  44,  1827;  Com- 
monwealth v.  Worcester,  3  Pick.  462,  1826.  Complaint  must  be  in  the 
name  of  the  treasurer  of  the  city  or  town,  and  not  in  that  of  the  common- 
wealth, for  violation  of  health  ordinances,  since  the  statute  of  1849. 
Chap.  CCXI.  sec.  7 ;  Commonwealth  v.  Fakey,  5  Cush.  408,  1850.  Police- 
men, marshals,  and  other  officers  of  a  municipal  corporation,  where  such  a 
course  is  not  repugnant  to  the  constitution  or  general  law  of  the  state,  may 
be  empowered  by  an  ordinance  to  arrest  offenders  without  warrant,  for 
breaches  of  ordinances  committed  in  their  presence.  Bryan  v.  Bates,  15 
111.  87;  Mainfl.  McCarty,  15  111.  442;  State  v.  Lafferty,  5  Harring.  (Del.) 
491.  A  city  ordinance  providing  that  any  person  who  shall  refuse  to  obey 
an  order  at  a  fire  given  by  any  officer  duly  authorized,  "  may  be  arrested 
and  detained  in  custody  until  the  fire  is  extinguished,"  is  unconstitutional, 
because  the  person  is  deprived  of  his  liberty  without  due  process  of  law, 
and  because  his  right  to  trial  by  jury  is  invaded.  The  court  distinguish 
between  an  arrest  of  this  kind  and  where  the  purpose  of  the  arrest  is  pre- 
liminary to  and  contemplates  a  judicial  examination.  Judson  v.  Reardon, 
16  Minn.  431,  1871.  Ante,  sees.  149,  150;  Mitchell  v.  Lemon,  34  Md.  176, 
1870;  Butolph  v.  Blust,  5  Lansing  (N.  Y.)  84,  1871.  Requisites  of  warrants 
for  the  violation  of  municipal  ordinances.  White  v.  Washington,  2  Cranch 
Cir.  C.  337.  Other  cases:  lb.  356;  lb.  459;  4  lb.  103;  lb.  582;  Prells  v. 
McDonald,  7  Kansas,  426,  1871.  Sufficiency  of  notice  to  the  accused  under 
special  charter  provisions.  4  Zabr.  142,  supra.  Essentials  of  summary  con- 
victions.    Commonwealth  v.  Borden,  61  Pa.  St.  272. 

1  Saund.  PI.  &  Ev.  324;  Comyn  Dig.  tit.  Pleader  (2  W.  11);  Feltmakers 
v.  Davis,  1  Bos.  &  Pul.  93;  Piper  v.  Chappell,  14  M.  &  W.  623;  Case  v. 
Mobile,  30  Ala.  538,  1857;  Coates  v.  Mayor,  7  Cow.  585,  608,  1827,  where 
the  substance  of  a  declaration  in  debt  is  given;  Charleston  v.  Chur,  2  Bailey 
(South  Car.)  164;  Krickle  v.  Commonwealth,  1  B.  Mon.  361,  1841.  Pleader 
need  not  negative  exception  in  a  proviso  to  the  enacting  clause  of  an  ordi- 
nance or  in  a  subsequent  section,  this  being  a  matter  of  defence.  Lynch  v. 
People,  16  Mich.  472,  1868.  The  conviction  must  be  for  the  same  offence 
for  which  the  defendant  is  prosemted.     Columbus  v.  Arnold,  30  Geo.  517. 


Ch.  XII. ]  MODE     OF     ENFORCING     ORDINANCES.  439 

or  its  substance  stated,  the  breach  and  the  plaintiff's  right 
to  sue  for  the  penalty.  But  where  the  charter  or  organic 
act  of  the  corporation  will  be  judicially  noticed,  it  cannot 
be  necessary  to  set  out,  as  it  has  been  held  to  be  in  England, 
the  authority  of  the  corporation  to  make  the  by-law.1 

§  349.  Where  the  penalty  is  given  in  general  terms,  it 
is  understood  to  be  to  the  use  of  the  corporation,  and  the 
action  or  prosecution  must  Ue  by  and  in  the  name  of  the 
corporation.2  In  England  it  was  the  practice,  in  many  cases, 
to  appoint  in  the  by-law  the  penalty  to  be  sued  for  in  the 
name  of  the  chamberlain,  treasurer,  or  some  other  officer  of 
the  corporation,  and  thongh  the  power  of  thus  suing  for 
the  penalty  could  not  be  given  to  a  mere  stranger,  yet  it 
was  not  absolutely  necessary  that  the  penalty  should  be 
given  to  the  corporation,  but  it  might  be  given  to  the  in- 
former.3 Whenever  the  mode  of  enforcing  obedience  to  a 
by-law  is  prescribed  by  such  by-law,  that  mode  must  be 
strictly  pursued,  and  the  plaintiff  (where  the  rules  of 
common  law  pleading  prevail)  must  be  the  party  to  whom 
the  penalty  is  given.  Where  it  is  given  to  the  chamberlain 
for  the  use  of  the  corporation,  the  action  must  be  in  the 
the  name  of  the  chamberlain,  and  not  in  that  of  the  corpo- 
ration. And  when  the  chamberlain  may  sue,  he  need  not 
set  out  his  election  or  appointment,  but  may  aver  generally 
that  he  is  chamberlain,  and  set  forth  his  right  to  sue  and  to 
recover.4  Unless  the  ordinance  show  that  it  was  intended 
that  no  action  for  a  penalty  should  lie  without  a  previous 
demand,  it  is  not  necessary  to  aver  one.6   Nor  is  it  necessary 

1  Norri9  v.  Staps,  Hop.  211. 

2  Bodwicw.  Fennell,  1  Wils.  233;  Vintners'  Co.  v.  Passey,  1  Burr.  235; 
Glover,  313;  2  Kyd,  157;  Graves  v.  Colby,  9  Ad.  &  El.  356;  Williamson  v. 
Commonwealth,  4  B.  Mon.  146,  151,  1843.     Ante,  chap.  VIII. 

3  Glover,  313,  314,  315;  Feltmakers  v.  Davis,  1  Bos.  &  P.  101;  Bodwic 
t>.  Fennell,  1  Wils.  233 ;  Tottendell  v.  Glazby,  2  Wils.  266 ;  Hesketh  v.  Brad- 
dock,  3  Burr.  1848 ;  Wood  v.  Searl,  Bridg.  141 ;  Graves  v.  Colby,  9  Ad.  & 
El.  356. 

4  Harris  v.  Wakeman,  Say.  255;  Exon  v.  Starre,  2  Show.  159.  Under  con- 
stituent act,  town  treasurer  held  entitled  to  sue  in  his  own  name  for  penal- 
ties. Watts  v.  Scott,  1  Dev.  (North  Car.)  291 ;  Commonwealth  v.  Fakey,  5 
Cush.  408,  1850. 

6  Butchers  v.  Bullock,  3  Bos.  &  P.  434,  437. 


440  MUNICIPAL     CORPORATIONS.  [Ch.  XII. 

to  aver  that  the  defendant  bad  notice  of  the  ordinance,  for 
this  is  conclusively  presumed  with  respect  to  all  on  whom 
it  is  binding.1 

§  350.  Mode  of  Procedure,  Defences,  Evidence,  &c. — 
In  prosecutions  to  enforce  ordinances,  the  ordinary  rules 
of  evidence  apply,  except  so  far  as  specially  modified  by 
statute  ;  and  it  is  not  competent  for  a  municipal  corporation, 
without  express  authority,  to  make  or  alter  the  rules  of 
evidence  or  of  law.3  It  is,  however,  competent  for  a  city  to 
provide  by  general  ordinance,  after  suit  commenced  to  re- 
cover a  penalty  for  acting  without  a  license,  that  the  grant- 
ing of  a  license,  though  by  its  terms  it  takes  effect  from  a 
day  previous  to  the  commission  of  the  offence,  shall  not  (as 
might  otherwise  be  the  case)  release  or  waive  the  penalty  .* 

%  351.  In  proceedings  to  enforce  ordinances,  the  ille- 
gality of  the  corporate  organization  cannot  be  shown  to 
defeat  a  recovery  ;  in  such  a  collateral  proceeding,  evidence 
that  the  corporation  is  acting  as  such  is  all  that  is  required.* 

§  352.  The  legislature  may  ratify  ordinances  not  other- 
wise binding ;  and  offenders  should  thereafter  be  prosecuted 
under  the  ordinances,  and  not  under  the  validating  act.6 

§  353.  In  prosecutions  or  actions  to  enforce  ordinances, 
or  in  considering  the  question  of  their  validity,  courts  will 

1  London  v.  Barnardston,  1  Lev.  16;  James  ■».  Putney,  Cro.  Car.  498. 

a  City  Council  v.  Dunn,  1  McCord  (South  Car.)  333;  Fitch®.  Pinckard,  4 
Scam.  (HI.)  78.  The  defendant's  admission  of  a  violation  of  an  ordinance 
is  competent  evidence.  Columbia  v.  Harrison,  2  Const.  R.  (South  Car.)  213, 
1818. 

3  City  Council  v.  Smidt.  11  Rich.  (South  Car.)  Law,  343;  City  Council 
v.  Corlies,  2  Bailey  (South  Car.)  189.  Commented  on  by  OWeall,  J.,  in  City 
Council  v.  Feckman,  3  Rich.  (South  Car.)  Law,  385.  And  see  case  last  cited 
as  to  other  circumstances,  in  which  it  was  held  that  a  prior  penalty  was- 
not  waived  by  a  subsequent  acceptance  of  the  amount  of  a  license  for  a 
year. 

4  Hamilton  v.  Carthage,  24  111.  22;  Mendota  v.  Thompson,  20  111.  197, 
Coles  County  v.  Addison,  23  111.  337:  Decorah  v.  Gillis,  10  Iowa,  234;  Ket- 
tering v.  Jacksonville,  50  111.  39;  Tisdale  v.  Minonk,  46  111.  9,  1867. 

5  Truchelut  v.  City  Council,  1  Nott  &  McC.  (South  Car.)  227, 1818.  Ants, 
chap.  IV.  sec.  46,  and  note. 


Ch.  XII.]      MODE     OF     EXFORCIXG     ORDINANCES.  441 

give  them  a  reasonable  construction,  and  will  incline  to 
sustain  rather  than  to  overthrow  them,  and  especially  is  this 
so  where  the  question  depends  upon  their  being  reasonable 
or  otherwise.  Thus,  if  by  one  construction  an  ordinance 
will  be  valid,  and  by  another  void,  the  courts  will,  if  pos- 
sible, adopt  the  former.  But  an  ordinance  which  transcends 
the  power  vested  in  the  body  which  passed  it  is,  void,  and 
may  be  taken  advantage  of  by  plea  or  answer  to  an  action 
to  recover  the  penalty  or  other  proceedings  to  enforce  it.1 
Its  validity  may  also  be  tested  in  proper  cases  by  suits 
against  the  corporation  or  its  officers  for  acts  done  under  it,* 

•  Commonwealth  v.  Robertson,  5  Cush.  438,  442,  1850;  Vintners  v.  Pas- 
dey,  1  Burr.  239;  Poulters  Co.  v.  Philips,  6  Bing.(N.  C.)  314,  323;  Tailors  of 
Ipswich,  11  Rep.  54,  a;  Norris  v.  Staps,  Hob.  211;  Tobacco,  &c.  Co.  v. 
Woodroffe,  7  B.  &  C.  838;  Moir  v.  Munday,  Sayer,  181,  185;  Rounds  v. 
Mumford,  2  Rh.  Is.  154,  1852.  Where  the  legislature  has  conferred  full  and 
exclusive  jurisdiction  on  a  municipal  corporation  over  a  certain  subject,  the 
acts  of  the  corporation  will  be  supported  by  every  fair  intendment  and  pre- 
sumption. Baltimore  v.  Clunet,  22  Md.  449,  1865.  In  view  of  the  inarti- 
ficial character  of  town  by-laws,  they  are  especially  entitled  to  a  reasonable 
construction.  Whitlock  v.  West,  26  Conn.  406 ;  Willc.  Mun.  Corp.  159,  pi. 
382.  By-laws  with  penalties  are  not  properly  penal  statutes.  The  penalty 
is  in  the  nature  of  liquidated  damages,  established  as  such  in  lieu  of  dama- 
ges which  a  court  would  be  authorized  to  assess.  Therefore  the  strict  rules 
by  which  the  validity  of  penal  statutes  are  to  be  tested  are  not  to  be  ap- 
plied to  the  by-laws  or  ordinances  of  municipal  corporations.  It  is  well 
remarked,  that  "  the  by-laws  of  very  few  of  these  corporations  could  stand 
such  a  test.  They  should  receive  a  reasonable  construction,  and  their  terms 
must  not  be  strictly  scrutinized  for  the  purpose  of  making  them  void.' 
Per  Eustis,  C.  J.,  Municipality  v.  Cutting,  4  La.  Ann.  335;  Merriam  v.  New 
Orleans,  14  II.  318;  S.  P.  Loze  v.  Mayor,  &c,  2  La.  427.  If,  however,  the 
ordinance  is,  in  its  nature,  highly  penal,  it  will  be  construed  strictly,  and  it 
must  clearly  embrace  the  offence  charged.  Krickle  v.  Commonwealth,  1 
B.  Mon.  261,  1841.  Contemporaneous  construction  often  of  great  weight 
in  interpreting  doubtful  provisions.  State  v.  Severance,  49  Mo.  401,  1872. 
Ante,  sec.  57,  note,  sec.  125,  note. 

2  Moir  v.  Munday,  Sayer,  181,  185.  See  protective  provisions  to  corpor- 
ate officers  and  agents  in  Municipal  Corporations  Act,  5  and  6  Will.  IV.  chap. 
LXXVI.  sees.  132,  133.  In  the  Canadian  Municipal  Act  (sec.  198,  Harrison's 
Munic.  Man.  2nd  ed.  p.  145),  there  is  what  the  author  would  suppose  to  be  a 
very  useful  provision  to  test  summarily  the  validity  of  by-laws,  to  the  effect 
that  a  resident  of  a  municipality  of  any  other  person  interested  in  a  by- 
law, order  or  resolution  may,  within  one  year,  apply  to  either  of  the  Supe- 
rior Courts  of  Common  Law  to  have  it  quashed,  and  the  court,  after  notice 
to  the  corporation,  may  quash  the  by-law,  order  or  resolution,  in  whole  or 


442 


MUNICIPAL     CORPORATIONS. 


[Ch.  XII. 


or  by  a  return  to  a  mandamus  where  the  party  justifies  his 
refusal  to  comply  with  the  writ,  on  the  ground  that  the 
ordinance  is  invalid,1  or,  as  elsewhere  shown,  by  bill  in 
chancery  to  enjoin  proceedings  thereunder. 

§  354.  If  part  of  a  by-law  be  void,  another  essential  and 
connected  part  of  the  same  by-law  is  also  void."  But  it 
must  be  essential  and  connected  to  have  this  effect.  Thus, 
if  an  ordinance,  or  even  the  same  section  of  an  ordinance, 
contains  two  separate  prohibitions  relating  to  different  acts, 
with  distinct  penalties  for  each,  one  of  which  is  valid  and 
the  other  void,  the  ordinance  may  be  enforced  as  to  that 
portion  of  it  which  is  valid.3 

in  part,  for  illegality;  and  it  is  further  provided  (sec.  205),  that  in  case  any- 
thing has  been  done  under  such  illegal  by-law,  order  or  resolution,  which 
gives  any  person  a  right  of  action,  no  action  shall  be  brought  until  one 
month's  notice  thereof  be  given  to  the  corporation,  and  such  action  must  be 
brought  against  the  corporation  and  not  against  any  person  acting  under 
the  by-law,  order  or  resolution.  Construction  of  provision,  see  Harrison's 
Munic.  Man.  (2nd  ed.)  pp.  148,  153. 

1  Rex  v.  Harrison,  3  Burr.  1322;  Grant  on  Corp.  89.  An  ordinance  may 
be  void  for  uncertainty  in  its  provisions,  as,  for  example,  one  which  alters 
street  grades,  without  referring  to  any  plan  or  establishing  new  grades. 
Kearney  v.  Andrews,  2  Stock.  (N.  J.)  70. 

5  Austin  v.  Murray,  16  Pick.  121,  126,  1834 ;  Com.  Dig.  By-law,  chap. 
VII.:  Rex  v.  The  Company,  &c,  8  Term  R.  356.  See  Commonwealth  v. 
Stodder,  2  Cush.  562,  1848;  Fishers.  McGirr,  1  Gray,  1;  Warren  v.  Mayor, 
&c.,  2  Gray,  84;  Commonwealth  v.  Hitchings,  5  Gray,  482. 

3  Commonwealth  v.  Dow,  10  Met.  382,  1845:  Amesbury  v.  Insurance  Co.  6 
Gray,  596 ;  Shelton  v.  Mayor  of  Mobile,  &c.  (market  ordinance),  30  Ala. 
540,  1857;  Rogers^.  Jones,  1  Wend.  237;  Thomas?).  Mount  Vernon,  9  Ohio, 
290;  1  Stra.  469;  Sir  T.  Raym.  288,  294;  Sayer,  256;  IB.  &  Ad.  95;  7  Term 
R.  549.  ''If  a  by-law  be  entire,  each  part  having  a  general  influence  over 
the  rest,  and  one  part  of  it  be  void,  the  entire  by-law  is  void."  Willcock 
on  Corp.  160,  pi.  384;  approved  Municipality  v.  Morgan,  1  La.  An.  Ill,  116, 
1846.  "But  if  a  by-law  consist  of  several  distinct  and  independent  parts, 
although  one  or  more  of  them  may  be  void,  the  rest  are  equally  valid,  as 
though  the  void  clauses  had  been  omitted."  Willcock,  161,  pi.  389;  Fazak- 
erly  v.  Willshire,  11  Mod.  353;  Lee  v.  Walis,  1  Kenyon,  295.  In  a  leading 
case,  Rex  v.  The  Co.  of  Fishermen,  8  Term  R.  356,  Lord  Kenyon  said : 
"  With  regard  to  the  form  of  the  by-law  indeed,  though  a  by-law  may  be 
good  in  part  and  bad  in  part,  yet  it  can  be  so  only  when  the  two  parts  are 
entire  and  distinct  from  each  other."  Approved,  Municipality  v.  Morgan,  1 
La.  An.  Ill,  116,  1846.     It  is  stated  in  Grant  on  Corporations,  88,  that  it  is 


Ch.  XII. ]  MODE     OF     ENFORCING     ORDINANCES.  443 

§  355.  When  not  specially  regulated  by  charter  or 
statute,  the  proof  of  ordinances  must  be  by  the  production 
of  the  originals  or  the  books  in  which  they  are  registered, 
as  these  are  the  primary  evidence.1  Printed  copies,  or  au- 
thenticated copies,  are  often  made*  competent  evidence  by 
the  legislature. 

••  now  fully  settled  that  a  by-law  that  is  void  in  part  is  void  wholly ;  e.  g.  if 
the  penalty  be  unreasonable  the  rest  of  the  by-law  is  vitiated  thereby,  and 
becomes  wholly  inoperative  and  null."  Citing  Com.  Dig.  By-Law,  chap. 
VII. ;  Colchester  v.  Godwin,  Carter,  121 ;  Ellwood  v.  Bullock,  6  Queen's  B. 
383;  Clarke  v.  Tuckett,  2  Vent.  182;  Rex  v.  Atwood,  4  B.  &  Ad.  481.  But 
the  rule  in  the  text  is  well  sustained,  and  is  reasonable;  and  it  is  not  true 
that  the  void  part  of  a  by-law  will  make  null  complete  and  independent 
parts  of  the  same  by-law  which  would  otherwise  be  good. 

1  Lumbard  v.  Aldrich,  8  N.  H.  81;  Stevens  v.  Chicago,  48  111.  498; 
Moore  v.  Newfield,  4  Greenl.  (Me.)  44;  Hallowell  Bank  v.  Hamlin,  14  Mass. 
178;  Case  of  Thetford,  12  Vin.  Abr.  90.  See  chapter  on  Corporate  Records 
and  Documents,  ante.  Proof  may  be  made  by  the  clerk  that  he  posted  up 
copies  of  an  ordinance  appearing  on  the  records,  without  producing  such 
copies  or  accounting  for  their  absence.  Teft  v.  Size,  5  Gilm.  (111.)  432. 
As  to  promulgation  and  publication  of  ordinance.  Charleston  v.  Chur,  2 
Bailey  (South  Car.),  164;  Kittering  v.  Jacksonville,  50  111.  39.  Supra,  sees. 
265-269. 

Where  the  charter  provides  that  the  printed  volume  of  City  Ordinances 
shall  be  evidence  in  all  courts,  the  ordinances  printed  therein  will  be  judi- 
cially noticed  the  same  as  public  statutes.  Napman  v.  People,  19  Mich. 
352, 1869.    Ante,  sec.  50. 


±u 


MUNICIPAL     CORPORATIONS. 


[Ch.  XI D. 


CHAPTER    XIII. 

Municipal  Courts. 

Municipal  Courts  in  England  and  at  Common  Law. 

i  3f)6.  A  municipal  corporation  may,  at  common  law, 
enjoy  the  franchise  of  holding  a  court ;  and  corporation  or 
municipal  courts,  which  were  local  or  inferior  jurisdictions, 
were  not  uncommon.1  They  were  treated  as  the  tribunals 
of  the  corporation,  but  since  courts  of  justice  are  for  the 
public  benefit,  words  in  a  charter  permitting  the  corpora- 
tion to  hold  a  court  are  imperative  ;2  and  the  right  cannot  be 
lost  by  non-user  ;  and  therefore  the  meie  disuse,  for  two 
hundred  years,  of  a  court  granted  to  a  corporation  by 
charter,  is  no  answer  to  a  rule  for  a  mandamus  command- 
ing them  to  hold  it,  though  it  was  alleged  that  there  were 
no  sufficient  funds  for  the  purpose.3 

The  common  law  doctrine  respecting  municipal  courts 
was  settled  to  be  that  the  municipal  corporation  could  bring 
no  action  therein  against  a  stranger  where  the  effect  would 
be  to  benefit  the  corporation  or  increase  its  funds,  for  that 
would  be  to  make  the  corporation  itself  both  judge  and 
party,  which  an  inflexible  and  fundamental  maxim  of  the 
common  law  prohibited  ;  and  the  same  principle  was  con- 
sidered to  operate  to  disqualify  corporators  to  sit  as  jurors 
in  such  cases ;  but  this  objection  did  not  apply  when  both 
parties  were  corporators.4 

The  English  Municipal  Corporation  Act  of  1835  provides 
for  the  establishment  of  borough  courts,  defines  their  juris- 
diction and  powers,  makes  burgesses  or  citizens  competent 

1  1  Inst.  114;  4  lb.  87,  224;  Cro.  Jac.  313;  Haddock's  Case,  T.  Raym. 
435. 

8  Rex  v.  Mayor,  &c.  of  Hastings,  5  B.  &  Aid.  592;  Grant  on  Corp.  34. 

8  Regina  v.  Mayor,  &c.  of  Wells,  4  Dowl.  P.  C.  562. 

*  Hesketh  v.  Braddock,  3  Burr.  1856-1868;  Grant  on  Corp.  194;  London 
r.  Wood,  12  Mod.  674 ;  1  Salk.  398 ;  Bosworth  v.  Budgen,  7  Mod.  461 ;  Rex 
r.  Rogers,  2  Ld.  Raym.  778;  Willc.  on  Corp.  157,  165. 


Cm  XIII.  ]  MUNICIPAL    COURTS.  445 

jurors,  contains  an  express  provision  that  no  witness  or 
magistrate  shall  be  incompetent  or  disqualified  by  reason  of 
his  being  liable  to  contribute  to  the  fund  of  the  corporation, 
and  regulates  in  general  the  proceedings  therein  for  viola- 
tion of  by-laws  or  ordinances,  and  the  collection  and  en- 
forcement of  penalties.1 

It  may,  however,  be  observed  that  the  power  to  make 
by-laws  is  limited,  and  does  not  extend  to  acts  criminal  in 
their  nature,  and  which  are  punishable  by  criminal  statutes 
in  force  throughout  the  municipality. 

American  Corporation  Courts— Constitutional  Provisions. 

§  857.  In  this  country  it  is  usual  to  provide  in  the 
charter  or  organic  act  of  a  municipal  corporation  for  a  local 
or  special  tribunal,  called  by  different  names,  such  as  the 
mayor's  court,  recorder's  court,  city  court,  and  the  like; 
and  which  is  invested  with  jurisdiction  over  complaints  and 
prosecutions  for  the  violation  of  the  ordinances  of  the  cor- 
poration, and  often,  for  public  convenience,  with  special 
civil  and  limited  criminal  jurisdiction  under  the  laws  of  the 
state. 

It  is  competent  for  the  legislature  to  provide  for  the 
establishment  of  these  inferior  courts,  and  to  invest  them 
with  such  measure  of  power  and  jurisdiction  as  may  be 
deemed  expedient,  if  no  provision  of  the  constitution  of  the 
particular  state  be  infringed.2 

1  5  and  6  Will.  IV.  chap.  LXXVI.  sees.  90,  91-118-134,  1835. 

2  State  v.  Mayor  of  Charleston,  14  Rich.  (So.  Car.),  Law,  480;  State  v. 
Helfrid,  2  Nott  &  McCord,  283,  1820.  Full  discussion  of  legislative  power 
to  create  inferior  courts,  and  define  jurisdiction.  lb.  ;  Gray  v.  The  State,  2 
Harring.  (Del.)  76,  1835.  Mayor's  court  an  inferior  court  within  meaning 
of  state  constitution.  lb.;  Egleston  v.  City  Council,  1  Coust.  (So.  Car.)  R. 
45,  1818.  As  to  official  character  of  city  recorder.  lb.;  Schroder  v.  City 
Council,  2  Const.  R.  726;  S.  C,  3  Brev.  533;  Tesh  v.  Commonwealth,  i 
Dana,  522;  Nugent  v.  The  State,  18  Ala.  521,  1821.  Holding  the  city  court 
of  Mobile,  which  is  invested  with  criminal  jurisdiction,  and  from  whose 
judgment  an  appeal  lies,  to  be  constitutional,  and  defiuing  meaning  of  in- 
ferior court,  lb.;  New  Orleans  v.  Costello,  14  La.  An.  37;  Myers  ».  People, 
26  111.  173;  Davis  v.  Woolnough,  9  Iowa,  104;  People  v.  Wilson,  15  111.  889; 
States.  Maynard,  14  111.  420;  Beesman  v.  Peoria,  16  III.  484;  Holmes  d. 
Fihlenbirg,    54  111.203,   1870;    Van  Swartow  v.  Commonwealth.  24  Pa.  St. 


446  MUNICIPAL    CORPORATIONS.  [Ch.  XIII. 

358.     We  hav^  elsewhere  shown  that  the  courts  have 
uniformly  held  that  it  was  competent  for  the  state  legisla- 

131.  1854;  Tierney  v.  Dodge,  9  Minn.  166;  Burns  v.  La  Grange,  17  Texas, 
415,  1856;  Ex  parte  Slattery,  3  Ark.  434;  11.  561;  Graham  v.  State,  1  Pike 
(Ark.)  171;  Floyd  v.  Commissioners,  14  Geo.  354,  1853;  State  v.  Guttierrez 
15  La.  An.  190 ;  Muscatine  v.  Steck,  7  Iowa,  505 ;  Richmond  Mayoralty  Case, 
19  Gratt.  (Va.)  673,  1870.  The  superior  court  of  the  city  of  San  Francisco 
is  constitutional.  Seale  v.  Mitchell,  5  Cal.  403;  Vassault  v.  Austin,  36  Cal. 
691 ;  Hickman  v.  O'Neal,  10  Cal.  294.  The  constitution  of  California,  as 
amended  in  1862,  authorized  the  legislature  to  establish  "recorder's  orother 
inferior  courts  in  any  incorporated  city  or  town;"  and  it  was  held,  in  view 
of  the  prior  decisions  in  the  state  just  cited,  that  the  municipal  criminal 
court  of  the  city  and  county  of  San  Francisco  was  an  inferior  court,  and 
constitutional.  People  v.  Nyland,  41  Cal.  129,  1871;  Stratman,  Ex  parte, 
39  Cal.  517,  1870.  The  Hustings  Court  of  Richmond  is  constitutional. 
Chahoon's  Case,  21  Gratt.  (Va.)  822,  1871;  Richmond  Mayoralty  Case,  19 
Gratt.  (Va.)  673,  1870. 

Under  a  constitutional  provision  declaring  that  "  the  judicial  power  shall 
be  vested  in  a  Supreme  Court,  in  district  courts,  and  in  justices  of  the 
peace,"  an  act  conferring  judicial  powers  on  the  mayor  of  a  city  was  con- 
sidered void,  and  it  was  held  that  for  violations  of  its  ordinances  the  corpo- 
ration should  resort  to  the  judicial  tribunals  organized  under  the  constitu- 
tion. Lafon  o.  Dufrocq,  9  La.  An.  350,  1854.  But  see  The  State  v.  Young, 
3  Kansas,  445,  1866,  where  a  provision  in  an  organic  act  that  the  judicial 
power  shall  be  vested  exclusively  in  a  Supreme  Court,  district,  probate,  and 
justice  courts,  was  held  not  to  prohibit  the  legislature  from  establishing 
municipal  courts  for  the  enforcment  of  municipal  regulations  and  ordin- 
ances. And  this  seems  to  be  the  correct  view.  Shafer  v.  Mumma,  17  Md. 
331.  In  Hutchins  v.  Scott,  4  Halst.  (N.  J.)  218,  1827,  the  objection  was 
made  that  the  legislature  could  not  constitutionally  confer  the  powers  of 
justices  of  the  peace  on  the  mayor,  recorder,  or  aldermen  of  a  city  or  borough, 
the  argument  being  that  since  the  constitution  provided  for  the  appoint- 
ment of  justices  of  the  peace  only,  and  not  for  corporate  officers,  officers 
exercising  the  authority  and  powers  of  a  justice  of  the  peace  should  be  ap- 
pointed as  such ;  but  the  objection  was  not  sustained.  In  Illinois,  mayors 
of  cities  cannot,  it  is  held,  be  constitutionally  invested  with  judicial  power. 
The  State,  &c.  v.  Maynard,  14  111.  420;  Beesman  v.  Peoria,  16  111.  484.  By 
the  general  law  of  Indiana  of  1857,  for  the  incorporation  of  cities,  mayors, 
in  addition  to  their  duties  proper,  have,  "'within  the  limits  of  cities,  the 
jurisdiction  and  powers  of  a  justice  of  the  peace  in  all  matters,  civil  and 
criminal,  arising  under  the  laws  of  the  state,  and  for  crimes  and  misde- 
meanors a  jurisdiction  co-extensive  with  the  county."  The  constitution  of 
the  same  state  (art.  VII.  sec  16j  declared  that  ''  no  person  elected  to  any 
judicial  office  shall,  during  the  term,  be  eligible  to  any  office  of  trust  or 
profit  under  the  state,  other  than  a  judicial  office."  One  Wallace  was 
elected  mayor  of  Indianapolis,  and  within  his  term  he  resigned  and  received 
a  majority  of  votes  for  sheriff  of  the  county.     It  was  held  by  the  Supreme 


Ch.  Xni.]  MUNICIPAL     COURTS.  447 

hires  to  create  municipal  corporations  with  powers  of  local 
government,  and  to  authorize  them  to  adopt  ordinances  or 

Court  of  Indiana  (Waldo  v.  Wallace,  12  Ind.  569,  1859;  Gulick  v.  New,  14 
lb.  93),  that  Wallace  was  a  "judicial  officer,"  and  therefore  ineligible  to 
the  office  of  sheriff;  that  the  voters  of  the  county  were  chargeable  with 
notice  of  his  ineligibility;  that  votes  cast  for  him  were  therefore  ineffectual, 
and  that  his  competitor,  having  received  the  greatest  number  of  legal  votes, 
though  not  a  majority  of  the  ballots,  was  duly  elected.  Notwithstanding 
the  great  consideration  which  these  cases  received,  I  venture,  with  great 
deference,  to  state  that  it  is  by  no  means  clear  to  my  mind  that  the  mayor 
was  a  "judicial  officer  "  within  the  meaning  of  the  constitution.  See,  as 
bearing  upon  the  above  decision,  and  illustrative  of  the  nature  of  the  office 
of  mayor,  Howard  v.  Shoemaker,  35  Ind.  Ill,  1871 :  Morrison  v.  McDonald, 
21  Maine,  550,  1842;  State  v.  Maynard,  14  111.  419,  1853;  Commonwealth  v. 
Dallas,  4  Dallas,  229;  S.  C.  more  fully,  3  Yeates,  300,  1801;  State  v.  Wil- 
mington, 3  Harring.  (Del.)  294,  1839.  Authority  of  a  mayor  under  a  statute 
investing  him  with  the  powers  of  a  justice  of  the  peace.  State  v.  Perkins, 
4  Zabr.  (N.  J.)  409;  1  Harr.  (N.  J.)  237.  See  Baton  Rouge  v.  Deering  15 
La.  An.  208.  A  constitutional  provision  as  to  eligibility  "to  the  office  of 
judge  of  any  court  of  the  state,"  &c,  and  requiring  a  two  years'  residence  "in 
the  division,  circuit,  or  county,"  was  considered  to  have  no  reference  to  the 
office  of  recorder  of  a  city.     The  People  v.  Wilson,  15  111.  389. 

The  constitution  of  Nevada  provided  that  "the  legislature  may  also 
establish  courts  for  municipal  purposes  onhj,  in  incorporated  cities  and 
towns,"  and  it  was  held  that  an  act  authorizing  the  city  recorder  to  ex- 
ercise the  duties  of  committing  magistrates  in  respect  to  offences  against 
tae  public  laws  of  the  state  was  in  conflict  with  the  constitution.  Meagher 
v.  County,  5  Nev.  244,  1869.  The  constitution  of  Maryland  contains  a  pro- 
vision that  "  the  judicial  power  of  the  state  shall  be  vested  in  a  Court  of 
Appeals,  in  circuit  courts,  in  such  courts  for  the  city  of  Baltimore  as 
may  be  hereafter  prescribed,  and  in  justices  of  the  peace,"  and  it  was  held 
that  the  legislature  might  authorize  municipal  courts  to  try  and  punish  dis- 
orderly persons  and  lewd  women  within  the  corporate  limits,  and  generally 
to  authorize  the  corporate  authorities  to  exercise  police  powers,  which  were 
distinguished  from  the  ordinary  judiciary  powers  of  the  state.  Shafer  v. 
Mumma,  17  Md.  331,  1861.  Further  as  to  construction  of  constitution  of 
Maryland  as  to  judicial  powers  of  Mayors.  Hagerstown  v.  Dechert,  32  Md. 
369,  1869. 

Under  the  constitution  of  North  Carolina  "special  courts"  are  author- 
ized "  for  the  trial  of  misdemeanors  in  cities  and  towns  where  they  may  be 
necessary;"  and  it  was  held  to  be  no  objection  to  an  act  of  the  legislature 
that  it  did  not  authorize  the  officers  of  such  court  to  try  persons  charged 
with  misdemeanors,  but  only  to  bind  them  over.  State  v.  Pender,  6ii  No. 
Car.  313,  1872.  But  under  the  constitution  the  legislature  cannot  confer 
upon  mayors  the  judicial  powers  of  justices  of  the  oeace  in  civil  actions. 
Edenton  v.  Wool,  65  lb.  379. 


448  MUNICIPAL    CORPORATIONS.  [Ch.  XIU. 

by-laws  with  appropriate  penalties  for  their  violation.  The 
power  to  do  this  includes,  by  fair  implication,  the  power 
to  authorize  violations  of  ordinances  (where  the  acts  are  not 
criminal  in  their  nature)  to  be  tried  and  determined  in  a 
summary  manner,  by  a  local  or  corporation  tribunal. 

The  distinction  between  statute  law  and  municipal  by- 
laws has  been  pointed  out,  and  the  subject  of  concurrent 
prohibitions  of  the  same  act  by  the  general  law  and  by  the 
local  ordinances  of  a  municipality  treated,  in  the  chapter 
on  Ordinances.  The  distinction  is  there  drawn,  and  is  to  be 
observed  between  acts  not  essentially  criminal,  relating  to 
municipal  police,  and  those  '  intrinsically  criminal,  and 
which  are  made  punishable  by  the  general  laws  of  the  state. 
The  pecuniary  penalties  which  are  annexed  to  violations  of 
the  former  class,  the  legislature  may,  we  think,  authorize 
the  corporation  to  enforce  in  its  own  name,  by  civil  action, 
or  by  complaint,  and  provision  need  not  necessarily  be  made 
that  they  shall  be  prosecuted  in  the  name  of  the  people  or 
of  the  state.1 

1  Barter  v.  Commonwealth,  3  Pa.  (Pen.  &  W.)  253 ;  Weeks  v.  Foreman, 
1  Harrison  (N.  J.),  237 ;  Ewbank  v.  Ashley,  36  111.  177 ;  Williams  v.  Augus- 
ta, 4  Geo.  509 ;  Floyd  v.  Commissioners,  14  Geo.  354 ;  Kip  v.  Patterson,  2 
Dutch.  (N.  J.)  298;  Lewistown  v.  Proctor,  23  111.  533;  State  v.  Jackson,  8 
Mich.  110.  See  State  v.  Stearns,  11  Fost.  106;  Goddard,  Petitioner,  16  Pick. 
504;  Finkfl.  Milwaukee,  17  Wis.  26. 

The  constitution  of  the  state  of  Iowa  contains  this  provision :  "  The  style 
of  all  process  shall  be  '  The  State  of  Iowa,'  and  all  prosecutions  shall  be  con- 
ducted in  the  name  and  by  the  authority  of  the  same."  Constitution  of 
Iowa,  art.  V.  sec.  8.  The  charter  of  the  city  of  Davenport,  in  terms, 
authorized  prosecutions  for  violations  of  municipal  ordinances  to  be  insti- 
tuted in  the  name  of  the  city,  and  it  was  contended  that  this  portion  of  the 
charter  was  in  conflict  with  the  above  quoted  provision  of  the  constitution. 
But  the  Supreme  Court,  in  the  case  of  Davenport  v.  Bird,  4  Iowa,  524, 
1871,  held  otherwise.  It  was  a  prosecution  in  the  name  of  the  city  against 
the  defendant  for  a  violation  of  an  ordinance  of  a  pobce  nature,  but  for 
which,  under  the  charter,  the  city  was  authorized  to  punisli  by  a  limited 
fine  and  imprisonment.  In  giving  the  opinion  of  the  court,  Miller,  J.,  says: 
"Is  it  necessary,  under  the  constitution,  that  all  prosecutions  for  violations 
of  municipal  police  ordinances  shall  be  conducted  in  the  name  and  hy  the 
authority  of  the  state  of  Iowa  ?  Or,  in  other  words,  is  that  clause  of  the 
city  charter  of  Davenport,  which  directs  that  •  all  suits,  actions,  and  prose- 
cutions be  instituted,  couimenced,  and  prosecuted  in  the  name  of  the  city  of 
Davenport^  in  conflict  with  the  constitutional  provision  before  refererd  to  i 
We  are  of  opinion  that  it  is  not.     This  clause  of  the  constitution  occurs  in 


Ch.  XIII.]  MUNICIPAL     COURTS.  449 

359.  In  creating  local  tribunals,  however,  and  in  pre- 
scribing their  jurisdiction,  it  is  essential  that  the  legislature 
should  keep  in  view  two  cardinal  considerations  :  First. 
That  these  inferior  courts  will  have  only  such  jurisdiction, 
and  can  exercise  only  such  powers,  as  are  expressly  given, 
or  necessarily  implied.  Fair  doubts  as  to  the  extent  of 
jurisdiction  are  resolved  against  the  corporation  ;  to  this 
effect  are  all  the  authorities.  Second.  Regard  should  also 
be  had  to  constitutional  provisions  intended  to  secure  the 
liberty  and  protect  the  rights  of  the  citizen.  The  state  con- 
stitutions contain  the  substance  of  the  provisions  of  Magna 
Charta  to  the  effect  that  no  citizen  shall  be  deprived  of  life, 
liberty,  or  property  but  by  the  judgment  of  his  peers  or  by 

art.  V.,  which  treats  of  the  judicial  department  of  the  government.  This 
article  vests  and  defines  the  judicial  power  of  the  state,  establishes  the 
tenure  of  office  of  the  judges,  and  defines  the  mode  of  their  election ;  fixes 
their  salary  and  limits  the  number  of  judicial  districts;  provides  for  the 
election  of  an  attorney  general,  and  other  matters  pertaining  to  the  judicial 
arm  of  the  slate,  among  which  is  the  clause  under  consideration.  From  all 
this,  it  seems  manifest  that  the  requirement  4  that  all  prosecutions  shall  be 
conducted  in  the  name  of  ''The  State  of  Iowa"'  contemplates  such  criminal 
prosecutions  as  shall  be  instituted  and  prosecuted  before  the  tribunals  which 
areprovided  for  iu  that  article  of  the  constitution  under  the  statutes  of  the 
state.  It  is  fitting  and  appropriate  that  prosecutions  for  violations  of  the 
criminal  laws  of  the  state  should  be  carried  on  in  the  name  of  the  govern- 
ment. But  there  is  no  fitness  or  propriety  in  requiring  the  state  to  be  a 
party  to  every  petty  prosecution  under  the  police  regulations  of  a  municipal 
corporation.  Such  a  construction  of  this  article  of  the  constitution  seems 
to  us  unwarranted,  and  not  intended  by  the  trainers  of  the  constitution. 
It  was  held  by  the  Supreme  Court  of  Pennsylvania  that  the  word  process,  in 
the  12th  section  of  the  5th  article  of  the  constitution  of  the  state  of  Penn- 
sylvania, which  provides  that  '  the  style  of  all  process  shall  be  the  Common- 
wealth of  Pennsylvania,''  was  intended  to  refer  to  such  writs  only  as  should 
become  necessary  to  be  issued  in  the  course  of  the  exercise  of  that  judicial 
power  which  is  established  and  provided  for  in  the  article  of  the  corstitu- 
tion,  and  forms  exclusively  the  subject  matter  of  it.  On  the  same  principle, 
we  are  of  opinion  that  the  word  '  prosecutions,'  in  the  8th  section  of  article 
V.  of  our  constitution,  was  intended  to  refer  only  to  such  criminal  prosecu- 
tions under  state  laws  as  should  be  cognizable  by  the  judicial  power,  which 
is  established  and  provided  for  in  that  article,  and  that  it  was  not  intended 
to  include  prosecutions  under  ordinances  of  municipal  corporations  cogniz- 
able before  local  police  magistrates." 

And  the  same  view  is  held  by  Hie  Court  of  Appeals  of  Kentucky.  Wil- 
liamson v.  Commonwealth,  4  B.  Mon.  14(5,  1S43.  As  to  mode  of  enforce- 
ment and  requisites  of  complaints,  vide  chapter  on  Ordinances,  sec.  341. 

29 


450  MUNICIPAL     CORPORATIONS.  [Ch.  XIII. 

the  law  of  the  land,  and  also  provisions,  more  or  less  exten- 
sive, securing  the  right  of  trial  by  jury.  These  and  other 
provisions  of  the  fundamental  law  cannot  be  violated  in  acts 
of  the  legislature  establishing  and  fixing  the  jurisdiction  of 
the  corporation  court  or  tribunal.1 

Citizens  Competent  to  be  Local  Judges,  Jurors,  and  Wit- 
nesses. 

§  360.  The  maxim  of  the  common  law  above  adverted 
to,  that  no  one  shall  be  a  judge  in  his  own  case,  has  no  just 
application  to  legislation  creating  municipal  courts,  and  in- 
vesting them  with  jurisdiction  to  try  complaints  for  breaches 
of  municipal  ordinances.  The  mayor,  though  a  citizen  of 
the  corporation,  may  be  clothed  with  judicial  powers  of  this 
character,  and  the  inhabitants,  though  interested  in  a  min- 
ute degree  in  the  recovery,  are,  or  at  least  may  be  declared, 
competent  witnesses.  In  this  respect  the  common  law  rules 
have  not  been  adopted  and  applied  by  the  American  courts 
to  our  municipal  corporations.* 

1  Zylstra  v.  The  Corporation  of  Charleston,  1  Bay,  382,  1794 ;  People  v. 
Slaughter,  2  Doug.  (Mich.)  334,  1842. 

2  Thomas  v.  Mount  Vernon,  9  Ohio,  290,  1839 ;  Commonwealth  v.  Read, 
1  Gray  (Mass.)  475 ;  The  Mayor  v.  Long,  31  Mo.  369,  1861 ;  Commonwealth 
v.  Ryan,  5  Mass.  90;  Cooley  Const.  Lim.  410,  412. 

In  The  City  Council  v.  Pepper,  1  Rich.  (So.  Car.)  Law,  364, 1845,  the  de- 
fendant, a  non-resident  of  the  city,  was  prosecuted  in  the  city  court,  estab- 
lished by  act  of  the  legislature,  for  violation  of  a  city  ordinance.  The 
defendant  made  the  point  that  as  the  judge  of  that  court,  the  sheriff,  and 
jurors  were  corporators,  and  therefore  interested  in  the  penalty,  they  were 
incompetent  to  try  the  cause.  In  holding  this  objection  unsound,  the 
Court  of  Appeals,  after  alluding  to  Hesketh  v.  Braddock,  3  Burr.  1847,  re- 
lied on  by  the  defendant,  remarks:  "The  statutory  authority  given  to  the 
city  court  to  try  all  offenders  against  city  ordinances,  impliedly  declares  that, 
notwithstanding  the  common  law  objection,  it  was  right  and  proper  to  give 
it  the  power  to  enforce  the  city  laws  against  all  offenders.  The  interest  is 
too  minute,  too  slight,  to  excite  prejudice  against  a  defendant ;  for  thejudge, 
sheriff,  and  jurors  are  members  of  a  corporation  of  many  thousand  mem- 
bers. What  interest  of  value  have  they  in  a  fine  of  twenty  dollars  ?  It 
would  put  a  most  eminent  calculator  to  great  trouble  to  ascertain  the  very 
minute  grain  of  interest  which  each  of  these  gentlemen  might  have.  To 
remove  so  shadowy  and  slight  an  objection,  the  legislature  thought  proper 
to  clothe  the  city  court,  consisting  of  its  judge,  clerk,  sheriff  and  jurors, 
with  authority  to  try  the  defendant,  and  he  cannot  now  object  to  it."     Per 


Ch.  XIII.]  MUNICIPAL     COURTS.  451 

Summary  Proceedings  may,  in  Certain  Cases,  be  Author- 
ized.— Jury  Trial. 

§  361  Proceedings  for  the  violation  of  municipal  ordi- 
nances are  frequently  summary  in  their  character,  and  it 
has  been  made  a  question  how  far  statutes  or  charters  au- 
thorizing such  proceedings  are  valid,  especially  where  no 
provision  is  made  for  trial  by  jury.  This  must  depend  upon 
the  constitution  of  the  state  and  the  extent  to  which  the 
power  of  the  legislature  is  therein  restricted.  Offences 
against  ordinances  properly  made  in  virtue  of  the  implied 
or  incidental  power  of  the  corporation,  or  in  the  exercise  of 
its  legitimate  police  authority  for  the  preservation  of  the 
peace,  good  order,  safety,  and  health  of  the  place,  and 
which  relate  to  minor  acts  and  matters  not  embraced  in  the 
public  criminal  statutes  of  the  state,  are  not  usually  or 
properly  regarded  as  criminal,  and  hence  need  not  neces- 
sarily be  prosecuted  by  indictment  or  tried  by  a  jury.1     An 

O'Neall,  J.,  City  Council  v.  Pepper,  1  Rich.  (So.  Car.)  Law,  364,  1845 ;  City 
Council  v.  King,  4  McNott  (So.  Car.)  487;  Corwein  v.  Haines,  11  Johns.  76, 
1814.  The  mayor  is  not  disqualified  from  presiding  in  the  Mayor's  Court, 
before  which  the  proceedings  are  held,  from  the  fact  that  he  is  the  owner 
of  a  lot  on  the  street  sought  to  be  widened.  The  Mayor  v.  Long,  31  Mo. 
369,  1861. 

1  Williams  v.  Augusta,  4  Geo.  509,  1S48 ;  approved,  Floyd  v.  Commis- 
sioners, 14  Geo.  358,  1853;  Vason  v.  Augusta,  38  Geo.  542,  1868;  State  v. 
Guttierrez,15  La.  An.  190;  Tierney  v.  Dodge,  9  Minn.  166, 186;  Byers  v.  Com- 
monwealth, 42  Pa.  St.  89;  1  Bish.  Cr.  Pr.  sec.  758;  States.  Conlin,  27  Vt. 
318.  Thus,  in  New  Jersey  it  is  held  that  legislative  authority  to  municipal 
courts  to  punish  violations  of  ordinances  by  a  limited  fine  and  imprison- 
ment, without  providing  for  a  trial  by  jury,  is  not  in  conflict  with  the  con- 
stitutional provision  that  "the  right  of  trial  by  jury  shall  remain  inviolate." 
McGear  v.  Woodruff,  33  N.  J.  Law,  213,  1868;  Johnson  v.  Barclay,  1  liarr. 
(N.  J.)  1.     Ante,  sees.  300,  344,  345. 

Treating  of  this  subject,  Mr.  Sedgwick  says:  "Extensive  and  summary 
police  powers  are  constantly  exercised  in  all  the  states  of  the  Union  for  the 
repression  of  breaches  of  the  peace  and  petty  offences;  and  these  statutes 
are  not  supposed  to  conflict  with  the  constitutional  provisions  securing  to 
the  citizens  a  trial  by  jury."  Stat,  and  Const.  Law,  548,  549 ;  Cooley,  Const. 
Lim.  596.  In  Williams  v.  Augusta,  supra,  proceedings  before  a  city  council 
for  violations  of  its  ordinances,  although  punishable  by  fine,  were  consid- 
ered not  to  be  "  criminal  case*  "  within  the  meaning  of  the  constitution  of 
Georgia,  vesting  the  jurisdiction  of  all  criminal  cases  in  tribunals  other  than 


452  MUNICIPAL    CORPORATIONS.  |Ch.  XTO. 

act  of  the  legislature  authorizing  the  arrest  of  professional 
thieves  and  burglars  frequenting  any  railroad  depot,  &c, 
in  the  city  of  Philadelphia,  and  their  commitment  by  the 
mayor,  without  a  trial  by  jury,  is  not  in  conflict  with  the 
provision  of  the  constitution  of  the  state,  which  guarantees 
"  that  trial  by  jury  shall  be  as  heretofore,  and  the  right 
thereof  remain  inviolate." 

corporation  courts,  the  court  being  of  opinion  that  the  term  "criminal 
cases,"  as  used  in  the  constitution,  had  reference  to  such  acts  and  omissions 
as  are  in  violation  of  the  public  laws  of  the  state,  and  not  to  violations  of 
local  ordinances  made  for  the  internal  police  and  government  of  the  city. 
In  the  state  last  named  the  settled  rule  is  that  the  same  act  cannot  be  twice 
punished — once  by  the  municipality  and  once  by  .the  state — and  the  rule 
is  adopted  that  the  municipal  power  ends  where  the  right  to  indict  under 
state  authority  exists,  as  any  other  rule  would  deprive  the  accused  of  the 
rio-ht  to  a  jury  trial.  Jenkins  v.  Thomasville,  35  Geo.  145,  1866 ;  Vason  v. 
Augusta,  supra;  Savanna  v.  Hussey,  21  Geo.  80,  1857.  So  in  Michigan: 
Peoples.  Slaughter,  2  Doug.  (Mich.)  334,  1842.  Otherwise  in  Kentucky: 
Williamson  v.  Commonwealth,  4  B.  Mon.  146,  1843.     Ante,  sees.  302,  344. 

-  Byers  v.  Commonwealth,  42  Pa.  St.  89.  In  this  case  the  extent  of  the 
right  of  trial  by  jury  at  common  law  is  thoroughly  examined  in  a  valuable 
opinion  by  Strong,  J.,  now  one  of  the  justices  of  the  Supreme  Court  of  the 
United  States,  and  the  validity  of  summary  convictions  sustained.  See 
chapter  on  Ordinances,  ante.  The  doctrine  may  be  considered  as  settled 
in  Pennsylvania  that  municipal  corporations  are  not  within  the  constitu- 
tional guaranty  of  jury  trial,  and  that  the  right  to  a  trial  by  jury  may  be 
withheld  by  the  legislature  from  new  offences,  and  from  new  jurisdictions 
created  by  statute  without  common  law  powers,  and  from  proceedings  out 
of  the  course  of  the  common  law.  Rhines  v.  Clark,  51  Pa.  St.  96,  1865,  per 
Woodward,  C.  J.;Dunsmore's  Appeal,  52  Pa.  St.  374,1866;  Ewing  v.  Filley, 
43  Pa.  St.  384,  1862;  Van  Swartow  v.  Commonwealth,  24  Pa.  St.  131,  1854. 
See  Barter  v.  Commonwealth,  3  Pa.  (Pen.  &  W.)  253,  1831.  A  different 
view  is,  to  some  extent,  taken  by  the  Supreme  Court  of  Vermont  under  the 
constitution  of  that  state,  whose  language  is,  that  "when  an  issue  of  fact 
proper  for  cognizance  of  a  jury  shall  be  joined  in  a  court  of  law,  the  parties 
have  a  right  to  trial  by  jury  which  ought  to  be  held  sacred."  In  the  opinion 
of  the  court,  a  public  corporation,  although  the  liability  on  the  corporation 
be  created  by  statute,  is  entitled  to  a  jury  trial,  and  therefore  a  statute  pro- 
viding for  a  compulsory  and  final  reference  of  a  case,  in  its  nature  one  at 
common  law,  is  void,  and  the  constitution  applies  to  all  controversies  fit  to 
be  tried  by  a  jury,  although  the  particular  right  was  created  by  statute 
enacted  after  the  adoption  of  the  constitution.  Plimpton  v.  Somerset,  33 
Vt.  283,  1860.  It  would,  perhaps,  be  going  too  far  to  say  that  municipal 
corporations  are  not  in  any  case  within  the  constitutional  guaranty  of  a 
trial  by  jury,  and  yet  it  would  not  follow  that  provision  might  not  be  made 


Cif.  XIII-.]  MUNICIPAL     COURTS.  453 

§  362.  But  where  the  legislature  undertakes  to  confer 
upon  the  courts  of  the  corporation,  or  where  the  corporation 
seeks  to  give  its  court  summary  jurisdiction  to  try  persons 
for  acts  which  are  indictable,  or  are  criminal  offences,  it  not 
unfrequently  happens  that  some  provision  of  the  constitu- 
tion, designed  to  protect  the  rights  or  liberty  of  the  citizen, 
is  violated.  Thus,  under  a  constitution  declaring  "that  no 
freeman  shall  be  put  to  answer  any  criminal  charge,  but  by 
indictment,"  etc.,  and  "  that  no  freeman  shall  be  convicted 
of  any  crime,  but  by  the  unanimous  verdict  of  a  jury  of 
good  and  lawful  men  in  open  court,  as  heretofore  used," 
an  act  of  the  legislature  which  gives  to  an  officer  of  an  in- 
corporated town  the  power  of  trying  assaults  and  batteries, 
or  other  crimes,  is,  in  the  opinion  of  the  Supreme  Court  of 
North  Carolina,  void,  because  it  violates  both  of  these  pro 
visions  of  the  constitution.1 

§  363.  A  similar  view  was  taken  in  the  state  of  Arkansas, 
the  constitution  of  which  provided  that  '4no  man  shall  be 
put  to  answer  any  criminal  charge  but  by  presentment,  in- 
dictment, or  impeachment ;"  and  it  was  held  that  the  legis- 
lature could  not  confer  upon  the  corporation  courts  of  a 
city  the  power  to  punish  an  assault  and  battery — this  being 
a  criminal  charge — without  presentment  or  indictment ;  and 
it  was  consequently  decided  that  the  judgment  of  convic- 
tion of  such  a  court  for  an  assault  and  battery  is  coram  non 
judice,  and  constitutes  no  bar  to  a  prosecution  by  indict- 
ment in  the  courts  of  the  state  for  the  same  offence.' 

for  the  trial  in  a  summary  way,  before  municipal  courts,  of  petty  or  police 
offences.     Ante,  Chap.  IV.     Supra,  sees.  300-302,  344,  345. 

1  State  v.  Moss,  2  Jones  (N.  C.)  Law,  66,  1854.  See  Tierney  v.  Dodge, 
9  Minn.  166,  1864.  The  constitution  of  Louisiana  (art.  103'  requires  that 
"prosecutions  shall  be  by  indictment  or  information.  The  accused  shall 
have  a  speedy  trial  by  an  impartial  jury  of  the  vicinage."  Another  article 
(124)  provides  that  "the  mayors,  recorders,  &c,  may  be  commissioned,  and 
the  legislature  may  vest  in  them  such  criminal  jurisdiction  as  may  be 
necessary  for  the  punishment  of  minor  crimes  and  offences,  as  the  police 
and  good  order  of  the  city  of  New  Orleans  may  require."  It  was  held  that 
article  108  laid  down  the  general  rule,  to  which  article  124  was  an  excep 
tion,  and  that  under  the  latter  article  it  was  competent  for  the  legislature 
to  provide  for  the  prosecution  of  minor  offences,  without  indictment  or 
jury  trial,  in  the  Recorder's  Court."   State  0.  Guttierrez.15  La.  An.  190,  1860. 

*  Rector  •>.  State,  6  Ark.  (1  Eng.)  187. 1845 ;  Durr  v.  Howard,  6  Ark.  461 ; 


454  MUNICIPAL    CORPORATIONS.  [Cn.  XIII. 

§  364.  The  same  doctrine  was  declared  in  Michigan. 
The  constitution  of  that  state  contained  a  provision  that 
"  no  person  shall  be  held  to  answer  for  a  criminal  offence 
unless  on  the  presentment  of  a  grand  jury,  except  cases 
cognizable  by  justices  of  the  peace,"  &c;  and,  by  the 
statutes  of  the  state,  the  keeping  of  a  bawdy  house  was 
declared  to  be  an  offence  punishable  by  fine  and  imprison- 
ment. Under  this  state  of  the  law  the  city  of  Detroit  was 
empowered  by  the  legislature  "to  make  all  such  by-laws 
and  ordinances  as  may  be  deemed  expedient  by  the  common 
council  for  effectually  preventing  and  suppressing  houses  of 
ill-fame  within  the  limits  of  the  city."  It  was  held  that  the 
term  "  criminal  offence  "  in  the  constitution  included  both 
felonies  and  misdemeanors,  and  embraced  the  offence 
(which  was  such  both  at  common  law  and  by  the  statute  of 
the  state)  of  keeping  a  house  of  ill-fame,  and  therefore  an 
ordinance  of  the  common  council  prescribing  the  punish- 
ment for  keeping  such  a  house  within  the  city  and  provid- 
ing for  the  trial  and  conviction  of  the  offenders  in  the 
municipal  court  without  indictment,  was  unconstitutional, 
the  judgment  of  the  court  resting  iipon  the  principle  that 
under  the  constitutional  provision  quoted,  there  could  be  no 
summary  conviction  under  an  ordinance  for  that  which  is  a 
criminal  offence  by  the  general  laws  of  the  state.1 

§  365.  So,  by  the  constitution  of  Texas,  it  is  provided 
that  "in  all  cases  in  which  justices  of  the  peace  or  inferior 

Lewis  v.  State,  21  Ark.  211.  But  it  is  held  in  the  same  state  that  a  corpo- 
ration court  may  punish  a  person  for  using  obscene  language  in  the  streets, 
because  such  an  offence  is  not  declared  criminal  by  any  statute  of  the  state. 
Slattery,  Ex  parte,  3  Ark.  484. 

1  People  v.  Slaughter,  2  Doug.  (Mich.)  334,  1842,  note;  and  see  "Welch  v. 
People,  lb.  332,  1846.  But  in  Kentucky,  the  constitution  of  which  provides 
that  "no  person  shall,  for  any  indictable  offence,  be  proceeded  against 
criminally  by  information,"  and  that  "all  prosecutions  shall  be  carried  on 
in  the  name  and  by  the  authority  of  the  commonwealth,"  the  legislature 
may  authorize  a  city  corporation  to  proceed  in  its  name  against  offenders 
for  violating  its  ordinances,  and  punish  them  by  fine,  although  the  offence, 
as  in  the  case  before  the  court  (an  assault  and  battery),  is  indictable  under 
the  laws  of  the  state.  The  court  regarded  the  proceeding  in  the  name  of 
the  corporation  as  of  a  quasi  civil  or  penal  nature,  and  not  as  criminal. 
Williamson  v.  Commonwealth,  4  B.  Mon.  146,  1843. 


Ch.  Xin.]  MUNICIPAL     COURTS.  455 

tribunals  shall  have  jurisdiction  of  causes  where  the  pen- 
alty is  fine  and  imprisonment  (except  in  cases  of  contempt), 
the  accused  shall  have  the  right  of  trial  by  jury,"  and 
under  this  it  was  held  that  the  mayor' s  court  could  not  con- 
stitutionally be  invested  with  power  to  try  summarily,  and 
without  a  jury,  a  person  for  assault  and  battery,  in  viola- 
tion of  the  ordinances  of  the  corporation,  where  the  mayor 
was  authorized  to  impose  a  fine.1 

§  366.  In  Zylstra  v.  The  Corporation  of  Charleston,  it 
appeared  that  the  organic  act  of  the  city  gave  to  the  com- 
mon council  power  to  affix  and  levy  fines  for  all  offences 
against  their  by-laws,  and  there  was  no  limitation  of  the 
amount  of  the  fines.  In  this  respect  the  charter  was  silent. 
The  "Court  of  Wardens"  (the  corporation  tribunal)  had 
the  power  expressly  given  to  it  to  commit  for  fines  and  penal- 
ties. Under  these  circumstances  the  corporation  of  Charles- 
ton passed  an  ordinance  prohibiting  the  exercise  of  the 
trade  of  candle  and  soap  making  within  the  limits  of  the 
city,  under  a  penalty  of  £100.  Zylstra  was  prosecuted  in 
the  Court  of  Wardens— composed  of  members  of  the  city 
council— for  a  violation  of  this  by-law,  and  fined  by  this 
court  £100.  On  his  motion  to  obtain  &  prohibition  it  was 
held,  under  the  constitution  of  that  state,  that  the  proceed- 
ings of  the  Court  of  Wardens  were  void,  not  being  accord 
ing  to  the  lex  terra  recognized  by  Magna  Charta,  and  ex- 
pressly adopted  by  the  state  constitution.  And  the  judges 
who  expressed  themselves  on  that  point  were  of  opinion, 
under  the  state  constitution,  that  that  tribunal  could  not  be 
invested  with  a  jurisdiction  greater  than  that  exercised  by 
justices  of  the  peace,  unless  there  was  provision  for  secur- 
ing a  trial  by  jury,  which  in  the  instance  before  the  court 
had  not  been  made.2 

1  Burns  v.  La  Grange,  17  Texas,  415,  1856;  S.  P.  Smith  v.  San  Antonio, 
lb.  643. 

2  Zylstra  v.  Charleston,  1  Bay,  382,  1794. 

In  holding  that  the  charter  of  the  city  of  Lancaster  did  not  confer  upon 
the  councils  the  right  to  vest  iu  the  mayor  and  aldermen  jurisdiction  to  con- 
vict summarily,  and  imprison  in  default  of  payment  of  the  penalty  affixed 
to  an  ordinance,  Gibson,  C.  J.,  remarked:  "  Now,  if  the  charter  even  pur- 
ported to  confer  a  power  to  imprison  on  summary  conviction  [for  a  mis- 


456 


MUNICIPAL     CORPORATIONS. 


[Ch.  xm. 


Sufficient  of  the  Right  of  a  Jury  Trial  is  Given  by  Appeal. 

§  367.  It  is,  however,  the  prevailing  doctrine,  that  al- 
though the  charge  or  matter  in  the  municipal  or  local 
courts  be  one,  in  respect  of  which  the  party  is  entitled  to  a 
trial  by  jury,  yet  if  by  an  appeal,  clogged  with  no  unrea- 
sonable restrictions,  he  can  have  sucli  a  trial  as  a  matter  of 
right  in  the  appellate  court,  this  is  sufficient,  and  his  consti- 
tutional right  to  a  jury  trial  is  not  invaded  by  the  summary 
proceeding  in  the  first  instance.1 

demeanor]  and  without  appeal  to  a  jury,  it  would  be  so  far  unconstitutional 
and  void."     Barter  v.  Commonwealth,  3  Pa.  (Pen.  &  W.)  253,  1831. 

A  statute  providing  for  summary  conviction  for  a  new  offence  before  in- 
ferior jurisdictions,  without  a  jury,  does  not  violate  the  provision  of  the 
constitution  that  "  trial  by  jury  shall  be  as  heretofore,  and  the  right  there- 
of remain  inviolate."  Van  Swartow  v.  Commonwealth,  24  Pa.  St.  131, 
1854.  See,  also,  Boring  v.  Williams,  17  Ala.  510;  Tines  v.  The  State,  26- 
Ala.  165 ;  In  re  Powers,  25  Vt.  261 ;  Murphy  v.  People,  2  Cow.  815 ;  Shirley 
v.  Lunenburg,  11  Mass.  379;  Rhines  v.  Clark,  51  Pa.  St.  96.     Suj)ra,   sec. 

361. 

As  to  the  right,  under  particular  constitutional  and  statutory  provisions, 
to  a  jury  trial,  for  violations  of  municipal  by-laws  :  Thomas  v.  Ashland,  12 
Ohio  St.  124;  Work  v.  State,  2  lb.  296;  Gray  v.  State,  2  Harring.  (Del.) 
76,  1836;  Low  v.  Commissioners  of  Pilotage,  R.  M.  Charlt.  (Geo.)  302; 
Green  v.  Mayor,  lb.  368,  371;  Williams  v.  Augusta,  4  Geo.  509;  approved, 
Floyd  v.  Commissioners,  14  Geo.  354.  1853;  State  v.  Guttierrez,15  La.  An. 
190;  Trigally  v.  Memphis,  6  Coldw.  (Tenn.)  382,  1869. 

Jurisdiction  of  mayor's,  recorder's,  and  police  courts  under  statutes  or  special 
charters.  Commonwealth  v.  Pindar,  ll.Met.  539;  Commonwealth  v.  Roark, 
8  Cush.  210;  Same  v.  Emery,  11  Cush.  406;  Elder©.  Dwight  Manufacturing 
Company,  4  Gray,  201;  State  v.  Ricker,  32  N.  H.  179;  Myers  v.  People,  26 
111.  173;  Rice  v.  State,  3  Kansas,  141;  State  v.  Young,  3  Kansas,  445; 
Malone  v.  Murphy,  2  Kansas,  250;  Gray  v.  State,  2  Harring.  (Del.)  76; 
Hutchins  v.  Scott,  4  Halst.  (N.  J.)  218;  Cincinnati  v.  Gwynne,  10  Ohio, 
192;  14  lb.  250,  603;  Markle  v.  Akron,  14  Ohio,  586;  Weeks  v.  Foreman,  1 
Harris.(N.  J.)  237;  Truchelut  v.  City  Council,  1  Nott  &  McC.  227;  Thorn- 
ton v.  Smith,  1  Washing.  (Va.)  R.  106;  McMullen  v.  City  Council,  1  Bay 
(South  Car.)  46;  Zylstra  v.  Charleston,  IV.  382;  Willis  v.  Booneville,  28 
Mo.  543;  Fayette  v.  Shafroth,  25  Mo.  445;  Sill  v.  Corning,  15  N.  Y.  297;. 
Goodrich  v.  Brown,  30  Iowa,  291,  1870.  In  re  Penna.  Hall,  5  Pa.  St.  204, 
1847. 

Extent  of  jurisdiction  territorially.  State  v.  Clegg,  27  Conn.  593;  Covill 
v.  Phy  (process)  26  111.  432;  State  v.  McArthur,  13  Wis.  383. 

1  Stewart  v.  Mayor,  7  Md.  501 ;  Morford  v.  Barnes,  8  Yerger  (Tenn.) 
444 ;  McDonald  v.   Schell,  6  Serg.  &  Rawle,    240 ;  Beers  v.  Beers,  4  Conn 


Ch.  XJIL]  municipal    courts.  457 


Review  of  Proceedings  by  Superior  Tribunals. 

§  368.  With  respect  to  inferior  jurisdictions,  the  right  to 
review  their  proceedings  by  the  superior  tribunals  will  not 
be  taken  away  unless  the  intention  of  the  legislature  to  this 
effect  is  expressed  with  unequivocal  clearness.  The  author 
ities  cited  in  the  note  will  show  the  great  length  to  which 
the  courts  go  in  preserving  the  right  to  review  the  proceed- 
ings of  subordinate  tribunals,  administered  frequently  by 
men  without  professional  or  judicial  knowledge  or  experi- 
ence. A  declaration  by  the  statute  concerning  an  inferior 
tribunal,  that  its  proceedings  "shall  be  final  and  conclu- 
sive" or  "without  appeal"  etc.,  will  not  deprive  a  party 
of  the  right  of  review  by  certiorari,  error,  or  the  proper 
proceeding.1    But  where  it  is  declared  with  respect  to  a 

535;  Jones  v.  Bobbins,  8  Gray,  329;  Dorgan  v.  Boston,  12  Allen,  223; 
Sedg.  St.  and  Const.  Law,  549 ;  Cooley  Const.  Lim.  410.     Infra,  sec.  651. 

'  Rex  v.  Commissioners,  2  Keeble,  43 ;  Rex  v.  Morley,  2  Burr.  1040 ; 
Lawton  t>.  Commissioners,  2  Caines  (N.  Y.)  179,  181;  Starr  v.  Trustees,  6 
Wend.  564;  Peoples.  Mayor,  2  Hill  (N.  Y.)  9;  Tierney  v.  Dodge,  9  Minn. 
166;  Ex  parte  Heath,  3  Hill  (N.  Y.)  42,  52,  and  cases  cited  and  reviewed 
by  Cowen,  J. 

A  kindred  subject  is  treated  in  the  chapter  on  Municipal  Officers — 
"  Special  Tribunal  to  Determine  Election  Contests  for  Municipal  Offices,"  anty 
sec.  139,  and  it  is  there  shown  that  the  ordinary  constitutional  provision 
that  the  judicial  power  shall  be  vested  in  certain  courts  does  not  disable  the 
legislature  from  providing  that  the  council  of  municipal  corporations  may 
finally  determine  the  validity  of  the  election  of  corporation  officers.  Mayor, 
&c.  e.  Morgan,  7  Martin  (La.)  1 ;  9  lb.  (N.  S.)  381,  1828;  State  v.  Fitzger- 
ald, 44  Mo.  425,  1869;  Ewing  v.  Filley,  43  Pa.  St.  384;  State  v.  Johnson, 
17  Ark.  407.  But  the  supervisory  jurisdiction  of  the  superior  courts  will 
not  be  held  to  be  taken  away  by  mere  negative  words.  Grier  v.  Sltackle- 
ford,  Const.  Rep.  642 ;  State  v.  Fitzgerald,  supra ;  Commonwealth  v.  Mc- 
Closkey,  2  Rawle,  369;  Ex  parte  Stralil,  16  Iowa,  369;  State  v.  Funck,  17 
Iowa,  365;  Bateman  v.  Megowan,  1  Met.  (Ky.)  533;  Wammacks  v.  Hollo- 
way,  2  Ala.  31 ;  Hummer  v.  Hummer,  3  G.  Greene,  42 ;  State  v.  Marlow,  15 
Ohio  St.  114;  Attorney  General  v.  Corporation  of  Poole,  4  Mylne  &  Cr.  17; 
Attorney  General  v.  Aspinwall,  lb.  613;  Parr  v.  Attorney  General,  8  CI.  & 
F.  409;  Taylor  v.  Americus,  39  Geo.  59.  Post,  chaps.  XX.  XXI.  XXII. 
Post,  sec.  740. 

The  Supreme  Court  of  Michigan,  in  reviewing,  on  certiorari,  the  legality 
of  a  conviction  of  a  defendant  in  the  recorder's  court  on  a  complaint  for 
violating  a  municipal  ordinance,    speaking  of  the  extent  of  the  revisory 


458  MUNICIPAL     CORPORATIONS.  [Ch.  XITI. 

court  of  general  and  superior  jurisdiction,  as  of  the  Su- 
preme Court  of  New  York,  that  its  action  (for  example,  in 
confirming  appraisements  for  opening  streets,  or  under  a 
railroad  act)  "shall  he  final  and  conclusive  upon  the  parties 
interested  and  upon  all  other  persons,"  the  right  of  appeal, 
which  would  otherwise  exist  from  the  decision  of  such 
3onrt  to  a  still  higher  tribunal,  as  to  the  Court  of  Appeals, 
is  destroyed.1  A  charter  provision  to  the  effect  that  appeals 
and  writs  of  error  from  judgments  of  the  mayor,  in  cases 
arising  under  the  charter,  should  only  be  allowed  in  cases 
where  the  fine  was  over  five  dollars,  was  considered  as 
evincing  the  legislative  intention  that  in  cases  where  the 
fine  was  under  that  sum  the  judgment  should  be  final,  and 

•power  of  the  superior  tribunals,  and  the  nature  and  purposes  of  the  municipal 
tribunals,  says:  "The  power  of  reviewing  upon  certiorari  judicial  proceed- 
ings of  inferior  tribunals  and  bodies  not  according  to  the  course  of  the 
common  law,  has  been  long  exercised  in  England,  as  well  as  in  this  country. 
The  power  has  been  jealously  maintained,  and  has  been  deemed  necessary 
to  prevent  oppression.  There  are  certain  classes  of  questions  which,  by 
common  understanding  from  time  immemorial,  belong  to  the  course  of  the 
judicial  inquiry  under  the  laws  of  the  land.  The  common  law,  and  the 
various  charters  and  bills  of  rights,  recognized  and  assured  the  right  to 
such  an  inquiry.  And  the  constitution,  in  apportioning  the  judicial  power, 
as  well  as  in  affirming  the  immunity  of  life,  liberty,  and  property,  has 
always  been  understood  to  guarantee  to  each  citizen  the  right  to  have  his 
title  to  property,  and  other  legal  privileges,  determined  by  the  general 
tribunals  of  the  state.  These  municipal  courts,  so  far  as  they  act  under  city 
by-laws,  are  not  designed  to  decide  between  man  and  man,  or  to  adminis- 
ter general  laws.  They  are  ordained  to  prevent  disorder  in  matters  of  local 
convenience,  and  to  regulate  the  use  of  public  and  quasi  public  easements, 
so  as  to  prevent  confusion.  If  in  exercising  this  power  they  can  incident- 
ally decide  upon  the  rights  of  private  property  so  as  to  determine  its  en- 
joyment without  review,  there  would  seem  to  be  a  practical  annihilation 
of  the  right  to  resort  to  the  general  tribunals  and  the  common  law."  Per 
Campbell,  J.,  Jackson  v.  People,  9  Mich.  Ill,  117,  1860.  Further,  see  chap. 
XXII.  post. 

An  appeal  from  inferior  tribunals  does  not  exist  unless  plainly  given. 
People  v.  Police  Justice,  7  Mich.  456;  Conboy  v.  Iowa  City,  2  Iowa,  90; 
Muscatine  v.  Steck,  7  Iowa,  503 ;  Dubuque  v.  Rebman,  1  Iowa,  444.  Cer- 
tiorari, on  the  other  hand,  will  lie  unless  plainly  denied,  or  other  specific 
remedy  be  given.  Cunningham  v.  Squires,  2  West  Va.  422,  1865.  Post, 
sec.  476,  and  chapter  on  Remedies  Against  Illegal  Corporate  Acts,  post. 

1  Matter  of  Canal  and  Walker  streets,  12  X.  Y.  (2  Kern.)  406,  1855, 
New  York,  &c.  Railroad  Company  v.  Marvin,  11  lb.  (1  Kern.)  276. 


Ch.  XIII. ]  MUNICIPAL    COURTS.  459 

hence  a  writ  of  prohibition  will  not  lie  to  restrain  its  collec- 
tion, nor  can  it  be  reviewed  on  certiorari.1 

%  369.  In  Virginia  it  is  decided  that  in  a  proceeding 
before  the  mayor  or  a  justice  to  impose  a  penalty  on  a  party 
for  obstructing  a  street,  the  mayor  or  justice  cannot,  if  the 
defendant  bona  fide  sets  up  title  to  the  land  claimed  as  a 
street,  inquire  into  the  validity  of  the  claim,  the  court  hold- 
ing that  by  the  principles  of  the  common  law  (which  are 
not  changed  by  the  statutes),  a  bona  fide  assertion  of  title 
to  property  or  to  an  incorporeal  hereitament,  or  real  fran- 
chise, ousted  the  jurisdiction  of  these  inferior  magistrates 
or  tribunals." 

1  Wertheimer  v.  Mayor,  &c,  29  Mo.  254,  1860. 

2  Warwick  v.  Mayo,  15  Gratt.  (Va.)  528,  1860.  To  the  same  effeet,  see 
Jackson  v.  People,  9  Mich.  Ill,  1860;  Grand  Rapids  v.  Hughes,  15  Mich. 
54,  1866.  See  chapter  on  Streets.  What  record  of  conviction  before  cor- 
poration officers  or  courts  should  show.  Keeler  v.  Milledge,  4  Zabr.  (N.  J.) 
142 ;  Muscatine  v.  Steck,  7  Iowa,  505.     See  chap.  XXII.  post. 


460 


MUNICIPAL     CORPORATIONS. 


[Ch.  xm 


CHAPTER  XIV. 


Contracts. 


§  370.  The  mode  of  enforcing  the  contracts  of  mu- 
nicipal corporations  will  be  considered  hereafter.1  In  this 
chapter  we  will  treat,  in  the  order  below  indicated,  of  the 
power  of  such  corporations  to  make  contracts  of  different 
kinds,  the  mode  of  exercising  the  power,  and  the  effect  of 
transcending  it : 

1.  Extent  of  Power  to  Contract,  and  How  Conferred — 
sees.  371,  372. 

2.  Mode  of  Exercising  the  Power — sec.  373. 

3.  Seal  Not  Necessary  Unless  Required— May  be  Con- 
cluded by  Vote  or  Ordinance — sees.  374,  375. 

4.  When  Bound  by  Contracts  Made  by  Agents— Mode 
of  Execution— sees.  376-380. 

5.  Contracts  Beyond  Corporate  Powers  "Void — Ultra 
Vires  a  defence — sees.  381,  382. 

6.  Implied  Contracts — When  Deducible — sees.  383,  384. 

7.  Ratification  of  Unauthorized  Contract — sees.  385-387. 

8.  Provision  Requiring  Letting  to  Lowest  Bidder^secs. 
388-392. 

9.  Contract  of  Suretyship — sees.  393. 

10.  Rights  and  Liabilities  as  Respects  Authorized  Con- 
tracts—Illustrations— Cases  Mentioned.  Power  to  Settle 
Disputed  Claims— to  Give  Extra  Compensation— to  Employ 
Attorneys— sees.  394-399. 

11.  Contracts  for  Public  Works— Rights  of  Contractors 
—sees.  400-403. 

12.  Same— Corporate  Control  Under  Stipulation— sees. 
400-403. 

13.  Evidences  of  Indebtedness— Negotiable  Bonds— sees. 

404,  405. 

1  See  post,  chaps.  XX.  XXII.  XXIII.  Legislative  power  over  contract* 
made  by  municipal  corporations.     See  chap.  IV.  ante. 


Ch.  XIV.]  CONTRACTS.  461 

14.     Ordinary  Warrants  or  Orders — Their  Legal  Nature 
—sees.  406,  407. 

14.     Liability  of  Indorsers  Thereof— sec.  408. 

16.  Payment  and  Cancellation  of  Orders  and  Warrants 
—sec.  409. 

17.  Rights  and   Remedies  of    Holders  Thereof- -sees. 
410,  411. 

18.  Defences  Thereto—  Ultra   Vires— Fraud — Want  of 
Consideration — sec.  412. 

19.  Orders  Payable  out  of  a  Particular  Fund — sec.  413. 

20.  Interest  on  Corporate  Indebtedness — sec.  414. 

21.  Railroad  Aid  Bonds — Course  of  Decision  in  U.  S. 
Supreme  Court — sees.  415,  416. 

22.  Leading  Cases  in  National  Supreme  Court  on  the 
Subject  Noticed— sees.  417,  422. 

23.  Decisions  in  State  Courts  Referred  to — Conclusion 
Stated— sees.  423-426. 


§  371.  ^Extent  of  Power,  and  How  Conferred. — In  de- 
termining the  extent  of  the  power  of  a  municipal  corpora- 
tion to  make  contracts,  and  in  ascertaining  the  mode  in 
which  the  power  is  to  be  exercised,  the  importance  of  a 
careful  study  of  the  charter  or  incorporating  act,  and  the 
general  legislation  of  the  state  on  the  subject,  if*  there  be 
any,  cannot  be  too  strongly  emphasized.  Where  there  are 
express  provisions  on  the  subject,  these  will,  of  course, 
measure,  as  far  as  they  extend,  the  authority  of  the  cor- 
poration. The  power  to  make  contracts,  and  sue  and  be 
sued  thereon,  is  usually  conferred,  in  general  terms,  in  the 
incorporating  act.  But  where  the  power  is  conferred  in  this 
manner  it  is  not  to  be  construed  as  authorizing  the  making 
of  contracts  of  all  descriptions,  but  only  such  as  are  neces- 
sary and  usual,  fit  and  proper,  to  enable  the  corporation  to 
secure  or  carry  into  effect  the  purposes  for  which  it  was 
created  ;  and  the  extent  of  the  power  will  depend  upon  the 
other  provisions  of  the  charter  defining  the  matters  in  re- 
spect of  which  the  corporation  is  authorized  to  act.  To  the 
extent  necessary  to  execute  the  special  powers  and  func- 
tions with  which  it  is  endowed  by  its  charter,  there  is,  in 


462 


MUNICIPAL     CORPORATIONS. 


[Ch.  XIV 


deed,  an  implied  or  incidental  authority  to  contract  obli 
gations  and  sne  and  be  sued  in  the  corporate  name.1 

1  1  Kyd.  69,  70;  2  Kent  Com.  224;  Angell  &  Ames,  sees.  110,  271; 
Galena  v.  Commonwealth,  48  111.  423,  1868 ;  Straus  v.  Insurance  Company, 
5  Ohio  St.  59,  1855 ;  Chaffee  v.  Granger,  6  Mich.  51  ;  Douglas  v.  Virginia 
City,  5  Nev.  147,  1869 ;  Goodrich  v.  Detroit,  12  Mich.  279 ;  Bank  of  Colum- 
bia v.  Patterson,  7  Cranch,  299,  1813;  Siebrechtw.  New  Orleans,  12  La.  An. 
496,  1857;  Bateman  v.  Mayor,  &c.,  3  Hurl.  &  Nor.  322,  1858. 

Under  general  authority  to  make  all  contracts  necessary  for  its  welfare, 
a  city  may  contract  for  water  worli.  Rome  v.  Cabot,  28  Geo.  50  ;  see  Wells 
v.  Atlanta,  43  Geo.  67.  Duty  and  power  as  owner  of  water  works.  Mc- 
Knight  v.  New  Orleans,  24  La.  An.  412,  1872.  Grant  v.  Davenport,  Iowa 
Sup.  Ct.  1873;  Hall  v.  Houghton,  8  Mich.  458.  For  grading  streets.  Sturte- 
vant  v.  Alton,  3  McLean,  393.  For  "breakwater"  to  protect  streets  of  a 
city  on  the  lake.  Miller  v.  Milwaukee,  14  Wis.  642;  approved,  arguendo, 
by  Cole,  J.,  in  Clason  v.  Milwaukee,  30  Wis.  316,  321,  1872.  Supra,  sec. 
261,  note.  Legislative  power  over  municipal  contracts.  Ante,  chap.  IV.  Grant 
v.  Davenport,  Iowa  Sup.  Ct.,  1873. 

The  city  of  Richmond  possessed,  under  its  charter,  all  the  powers  of 
municipal  corporations,  including  the  power  "to  contract  and  be  contracted 
with,"  and  its  council  was  specially  empowered  to  "pass  all  by-laws  which 
they  shall  deem  necessary  for  the  peace,  comfort,  convenience,  good  order, 
good  morals,  health,  or  safety  of  the  city,  or  of  the  people  or  property 
therein."  In  April,  1865,  in  anticipation  of  the  evacuation  of  the  city  by 
the  confederate  army  and  the  entry  of  the  national  forces,  the  city  council 
ordered  the  destruction  of  all  the  liquor  in  the  city,  and  pledged  the  faith  of 
the  city  for  the  payment  of  its  value,  and  it  was  decided  by  the  Court  of 
Appeals  that  under  the  provision  of  the  charter  above  mentioned  the 
council  had  authority  to  make  the  order  and  pledge,  and  hence  the  city  was 
responsible  for  the  value  of  liquor  destroyed  under  the  order  of  the  council. 
Jones  v.  Richmond,  18  Gratt.  (Va.)  517,  1868.  The  same  question  upon 
the  same  resolutions  of  the  city  council  was  presented  to  the  United  States- 
Supreme  Court  in  Richmond  v.  Smith,  15  Wall.  429,  1872;  and  it  followed, 
without  examination  into  its  correctness,  the  exposition  of  the  charter  given 
by  the  State  Court  in  Jones  v.  Richmond,  supra.  Upon  the  general  princi- 
ples of  construction,  the  author  doubts  whether  the  order  for  the  destruc- 
tion of  the  liquors  was  within  the  scope  of  the  corporate  powers  of  the  city. 
Ante,  sec.  55.  Contract  made  by  city  under  government  therein  set  up  by 
the  United  States  military  authority  held  valid.  Prather  v.  New  Orleans, 
24  La.  An.  41.  In  the  absence  of  a  provision  in  the  statute  or  ordinances 
to  the  contrary,  a  municipal  corporation  may  lawfully  enter  into  a  contract 
with  an  officer  of  the  corporation.  Albright  v.  Town  Council,  9  Rich. 
(South  Car.)  Law.  399.  In  this  case,  a  contract  entered  into  between  the 
town  council  and  intendant  of  a  town,  whereby  the  latter  agreed  to  keep 
the  streets  in  repair,  was  held  valid.  See,  also,  Railroad  Company®.  Clag- 
horn,  Speers  Eq.  562.  Compare,  City  of  Toronto  v.  Bowes,  4  Grant 
(Canada)  504,  as  to  contracts  with  members  of  the  council.  Ante,  sec.  221, 
note,  sec.  230. 


Ch.  XIV.]  CONTRACTS.  463 

§  372.  Thus,  if  the  corporation  is  authorized  to  erect 
markets,  it  may  contract  to  buy,  or  may  receive  a  grant  of 
land,  on  which  to  place  market  buildings,  and  it  may  make 
contracts  for  the  erection  of  market  houses.  As  it  is  the 
general  practice  in  granting  municipal  charters  and  in  general 
acts  for  the  incorporation  of  towns  and  cities,  to  enumerate 
their  powers  and  define  their  duties,  it  will  suffice  in  this 
place  to  remark  generally  that  the  authority  to  enter  into 
contracts  necessary  and  proper  to  carry  into  effect  their 
powers  and  discharge  their  duties  is  impliedly  given  to 
every  such  corporation.  But  this  implied  authority  is  only 
co-extensive  with  the  powers  and  duties  of  the  corporation  ; 
and  if  any  greater  authority  is  claimed  it  must  be  sought 
for  in  an  express  or  special  grant  from  the  legislature.  It 
is  scarcely  necessary  to  observe  that  no  contract  can  be 
made  by  a  corporation  which  is  prohibited  by  its  charter  or 
by  the  statute  law  of  the  state.1  And  it  is  a  general  and 
fundamental  principle  of  law,  that  all  persons  contracting 
with  a  municipal  corporation  must,  at  their  peril,  inquire 
into  the  power  of  the  corporation  or  its  officers  to  make  the 
contract ;  and  a  contract  beyond  the  scope  of  the  corpoiate 
power  is  void,  although  it  be  under  the  seal  of  the  corpora- 
tion."    So,  also,  those  dealing  with  the  agent  of  a  municipal 

1  Jackson  v.  Bowman,  39  Miss.  671,  1861.  Contracts  to  violate  the  char- 
ter, or  to  bargain  away  or  restrict  the  free  exercise  of  legislative  discretion, 
vested  in  a  municipality  or  its  officers  in  reference  to  public  trusts,  are  void. 
lb.  Thomas  v.  Richmond,  12  Wall.  349,  1870,  in  whicn  notes  issued  by 
the  city  to  circulate  as  money  in  contravention  of  law  were  adjudged  void, 
and  the  city  held  not  to  be  liable  either  in  special  or  general  assumpsit. 
Ante,  sec.  61,  and  cases  there  cited. 

2  Marsh  v.  Fulton  County,  10  Wall.  676,  1870;  Ante,  sec.  55;  Infra,  sec. 
380;  Leavenworth  v.  Rankin,  2  Kansas,  357,  1864;  Horn  v.  Baltimore,  30 
Md.  218,  1868;  Bridgeport  v.  Railroad  Company,  15  Conn.  475.  493,  1843; 
Haynes  v.  Covington,  13  Sm.  &  Mar.  408,  1850;  Taft  v.  Pittsford,  28  Vt. 
(2  Wins.)  286,  1856;  City  Council  v.  Plank  Road  Company,  31  Ala.  76,  1857; 
Steam  Navigation  Jompany  v.  Dandridge,  8  Gill  &  J.  248.  319;  Hodges  v. 
Buffalo,  2  Denio,  110;  Baltimore  v.  Escbbach,  18  Md.  276,  282,  1861;  Balti- 
more v.  Reynolds,  20  Md.  1;  Dill  v.  Inhabitants,  &c,  7  Met.  438,  1844; 
Branham  v.  San  Jose,  24  Cal.  585,  602;  Sturtevant  o.  Alton,  3  McLean,  893, 
1844;  Wallaces  San  Jose,  29  Cal.  180;  State  r.  Kirkley.  2'J  .Md.  85,  111, 
1868;  Bateman  v.  Mayor,  &c,  3  Hurl.  &  Nor.  323;  State  v.  Haskell,  20 
Iowa,  276.  Within  the  scope  of  its  power  a  corporation  may  contract  to  do 
an  act  at  any  j>laee  other  than  the  one  where  it  is  located.     Bank  of  Utica 


464 


MUNICIPAL    CORPORATIONS. 


[Ch.  XIV. 


corporation  are  likewise  bound  to  ascertain  the  nature  and 
extent  of  his  authority.  This  is  certainly  so  in  all  cases 
where  this  authority  is  special  and  of  record,  or  conferred 
by  statute.  The  fact  in  such  a  case  that  the  agent  made 
false  representations  in  relation  to  his  authority  and  what 
he  had  already  done,  will  not  aid  those  who  trusted  to  such 
representations  to  establish  a  liability  on  the  part  of  his 
corporate  principal.1 

v.  Smedes,  3  Cow.  662;  Maddox  «.  Graham,  2  Met.  (Ky.)  56.  Or  prospec- 
tive in  its  terms.  Davenport  v.  Hallowell,  10  Maine,  317.  As  to  corporate 
seal.  Ante,  sec.  130.  "Where  a  public  corporation,  transcending  its  legal 
power,  assumes  to  direct  its  officers — for  example,  commissioners  of  high- 
ways— to  bring  an  action  in  their  own  names,  or  in  their  name  of  office, 
against  third  persons  for  trespasses  upon  the  highways,  and  the  action  is 
accordingly  brought  and  the  officers  are  defeated,  they  cannot  sustain  an 
action  against  the  corporation  to  be  reimbursed  their  costs  and  expenses; 
and  the  reason  is,  that  the  action  of  a  corporation  directing  such  a  suit  to 
be  brought,  being  in  excess  of  its  lawful  power,  is  void,  and  cannot  be  the 
foundation  of  any  contract,  express  or  implied.  Cornell  v.  Guilford,  " 
Denio,  510      Ante,  sec.  98. 

1  Baltimore  v.  Eschbach,  18  Md.  276,  282;  Baltimore  v.  Reynolds,  20 
Md.  1,  1862;  Delafield  v.  State  of  Rlinois,  2  Hill  (N.  Y.)  159,  174;  26  Wend. 
192,  1841;  affirming  S.  O,  8  Paige,  531,  restraining  unauthorized  sale  of 
bonds.  Hodges  v.  Buffalo,  2  Denio,  110 ;  3  Comst.  430 ;  2  Barb.  104 ;  Super- 
visors, &c.  v.  Bates,  17  N.  Y.  242,  1858.  This  case  also  determines  how  far, 
in  such  a  case,  the  sureties  of  such  an  agent  or  officer  are  liable  for  his  acts. 
And  see  cases  cited  lb.  p.  245.  Chemung  Canal  Bank  v.  Supervisors,  5 
Denio,  517,  1848;  Overseers,  &c.  v.  Same,  15  N.  Y.  341;  2  Comst.  178,  per 
Strong,  J.;  Marsha.  Fulton  Co.,  10  Wall.  676,  1870;  Miner's  Ditch  Co.®. 
Zellerbach,  37  Cal.  543,  1869;  Swift®.  Williamsburg,  24  Barb.  427;  Hague 
v.  Philadelphia,  48  Pa.  St.  527;  State  v.  Kirkley,  29  Md.  85,  111;  Horn  «. 
Baltimore,  30  Md.  218,  1868;  Thomas®.  Richmond,  12  Wall.  349,  1870, per 
Bradley,  J. 

Special  and  limited  authority  to  borrow  money  conferred  upon  the  town 
treasurer,  when  exercised,  is  exhausted,  and  the  town  is  not  liable  for  money 
he  subsequently  borrows  and  converts  to  his  own  use,  although  he  assumed  to 
act,  and  was,  by  the  lender,  supposed  to  be  acting  uuder  the  authority  con- 
ferred upon  him.   Savings  Bank  «.  Winchester,  8  Allen,  109,  1864;  ««£<?,  sec.  81. 

So  in  Upper  Canada  it  is  held  that  an  individual  dealing  with  a  corpo- 
ration through  its  council  or  the  members  of  the  governing  body,  is  bound 
to  notice  the  objects  and  limits  of  their  powers  and  the  manner  in  which 
those  powers  are  to  be  exercised,  and  it  should  be  borne  in  mind  that  their 
acts,  when  beyond  the  scope  of  their  authority  or  done  in  a  manner  unau- 
thorized, are  in  general  nugatory  and  not  binding  on  the  corporation.  Ram- 
say et  al.  v.  The  Western  District  Council,  4  U.  C.  Q.  B.  374;  Harr.  Manual, 
2nd  ed.  p.  20.  . 


€h.  XII.]  CONTRACTS.  455 

§  373.  Mode  of  Exercising  the  Power. — Respecting  the 
mode  in  which  contracts  by  corporations  should  be  made, 
it  is  important  to  observe,  that  when,  as  is  sometimes  the 
case,  the  mode  of  contracting  is  specially  and  plainly  pre- 
scribed and  limited,  that  mode  is  exclusive,  and  must  be 
pursued,  or  the  contract  will  not  bind  the  corporation  ;'  but 
the  courts  have  sometimes  regarded  provisions  on  this  sub- 
ject as  directory.  Thus,  where  the  charter  directed  the 
mode  in  which  moneys  should  be  drawn  from  the  treasury 
to  be  by  an  order  of  the  council,  signed  by  the  mayor,  such 
an  order,  issued  upon  a  memorandum  in  the  minutes  of  the 
corporation,  without  a  formal  order  being  entered,  was  ad- 
judged a  sufficient  compliance  with  the  charter.3  But  un- 
less the  mode  be  prescribed  and  limited,  valid  contracts 
within  the  scope  of  the  corporate  powers  may  be  made,  as 
we  shall  see,  otherwise  than  under  seal  or  in  writing. 

§  374.  Seal  not  Necessary — How  Concluded. — Modern 
decisions  have  established  the  law  to  be,  that  the  contracts 

1  Head  v.  Insurance  Company,  2  Cranch  (U.  S.)  127,  1804;  White  v. 
New  Orleans,  15  La.  An.  GG7;  Infra,  sec.  388;  Dey  v.  Jersey  City,  19  N.  J. 
Eq.  412,  1869;  Baltimore  v.  Reynolds,  20  Md.  1.  Speaking  of  this  subject 
in  the  case  first  cited,  Marshall,  C.  J.,  says:  "The  act  of  incorporation  is  to 
them  an  enabling  act;  it  gives  them  all  the  power  they  possess;  it  enables 
them  to  contract,  and  when  it  prescribes  to  them  a  mode  of  contracting,  they 
must  observe  that  mode,  or  the  instrument  no  more  creates  a  contract  than 
if  the  body  had  never  been  incorporated."  Approved,  Bank  of  United 
States  v.  Dandridge,  12  Wheat.  64,  68,  1827;  see  also  Angell  &  Ames  Corp. 
sec.  253;  Diggle  v.  Railway  Company,  5  Exch.  442;  Homersham  v.  Wol. 
&c.  Company,  4  Eng.  Law  &  Eq.  426;  Frend  v.  Dennett,  4  C.  B.  (X.  8.) 
576;  Butler  v.  Charlestown,  7  Gray  (Mass.)  12;  Trustees  v.  Cherry,  8  Ohio 
St.  564,  1858;  Bladen  v.  Philadelphia,  60  Pa.  St.  464;  McCracken  0.  San 
Francisco,  16  Cal.  591 ;  Piemental  v.  San  Francisco,  21  Cal.  351 ;  Zottman 
v.  San  Francisco,  20  Cal.  90;  Argenti  v.  San  Francisco,  16  Cal.  255,  283, 
opinion  of  Field,  C.  J.  Post,  chapter  on  Taxation  and  Local  Assessments. 
If  a  corporation  sue  upon  a  contract,  though  it  be  executory  on  their  part, 
and  not  executed,  this  amounts  to  a  conclusive  admission  that  the  contract 
was  duly  entered  into  by  them.  Grant  on  Corp.  63;  5  Man.  &  Granger, 
192.  A  contract  by  a  city  with  street  railway  company  held  not  concluded, 
something  remaining  to  be  done.  People's  R.  R.  v.  Memphis  R.  R.,  10 
Wall.  38. 

2  Kelly  v.  Mayor,  &c.  of  Brooklyn,  4  Hill  (K  Y.)  263,  1843;  seeNeiiler 
v.  Bank,  1  Head  (Tenn.)  163;  Penrose  v.  Taniere,  12  Queen's  B.  1011;  Mad- 
dox  v.  Graham,  2  Met.  (Ky.)  56. 

30 


466 


MUNICIPAL     CORPORATIONS. 


[Ch.  XIV, 


of  municipal  corporations  need  not  be  under  seal  unless  the 
charter  so  requires.  The  authorized  body  of  a  municipal 
corporation  may  bind  it  by  an  ordinance,  which,  in  favor 
of  private  persons  interested  therein,  may,  if  so  intended, 
operate  as  a  contract ;  or  they  may  bind  it  by  a  resolution, 
or  by  vote  clothe  its  officers,  agents,  or  committees,  with 
power  to  act  for  it ;  and  a  contract  made  by  persons  thu? 
appointed  by  the  corporation,  though  by  parol  (unless  it  be 
one  which  the  law  requires  to  be  in  writing)  will  bind  it.1 


1  Fanning  v.  Gregoire,  16  How.  (U.  S.)  524,  1853;  Ante,  sec.  132;  Abbey 
».  Billups,  35  Miss.  618;  Alton  v.  Mulledy,  21  111.  76,  1859;  Western,  &c. 
Society  v.  Philadelphia,  31  Pa.  St.  175;  lb.  185;  Clark  v.  Washington,  12 
Wheat.  40,  1827;  Hamilton  v.  Railroad  Company,  9  Ind.  359,  1857;  Ross 
v.  Madison,  1  Ind.  (Cart.)  281,  1848 ;  Story  Agency,  sec.  52,  where  it  is  said 
that,  "  as  the  appointment  of  an  agent  of  a  corporation  may  not  always  be 
evidenced  by  written  vote,  it  is  now  the  settled  doctrine — at  least  in  Amer- 
ica— that  it  may  be  inferred  and  implied  from  the  adoption  or  recognition 
of  the  acts  of  the  agent  by  the  corporation."  Infra,  sec.  383.  Parol  con- 
tract by  council  with  city  physician  held  valid,  no  provision  of  the  charter 
being  contravened.  Selma  v.  Mullen,  46  Ala.  411,  1871.  See,  also,  Eroor 
Com.  on  Com.  Law,  561-570. 

In  Fleckner  v.  United  States  Bank,  8  Wheat.  (U.  S.)  338,  357,  1823,  it 
was  urged  that  a  corporation  could  not  authorize  any  act  to  be  done  by  an 
agent  by  a  mere  vote  of  the  directors,  but  only  by  an  appointment  under  its 
corporate  seal.  But  the  court  declared  that  such  a  doctrine,  whatever  may 
have  been  its  original  correctness  as  applied  to  common  law  corporations, 
had  "no  application  to  modern  corporations  created  by  statute,  whose 
charters  contemplate  the  business  of  the  corporation  to  be  transacted  by  a 
special  body  or  board  of  directors.  And  the  acts  of  such  a  body  or  board, 
evidenced  by  a  written  vote,  are  as  completely  binding  upon  the  corpora 
tion,  and  as  complete  authority  to  their  agents,  as  the  utmost  solemn  acts 
done  under  the  corporate  seal."  Per  Story,  J.  Further,  as  to  common 
seal,  see  ante,  sec.  130.  Authority  of  agent,  in  absence  of  special  restric- 
tion, may  be  given  by  parol  or  inferred  from  acts.  Detroit  v.  Jackson,  J 
Doug.  (Mich.)  106.     See  ante,  sec.  130.     Infra,  sec.  383. 

A  provision  in  the  organic  act  of  a  city,  that  "  on  the  passage  of  every 
by-law  or  order  to  enter  into  a  contract  by  the  council,  the  ayes  and  nays 
shall  be  called  and  recorded,"  prescribes  how  the  order  to  contract  shall  be 
made  and  evidenced  when  directed  by  the  council,  but  it  is  not  a  limitation 
on  the  power  of  authorized  agents  to  make  a  contract  by  parol.  Indianola 
v.  Jones,  29  Iowa,  282,  1870.  Ante,  sec.  221);  Baker  v.  Johnson  Co.. (parol 
contract),  33  Iowa,  151. 

Contract  may  be  concluded  by  ordinance  or  action  of  the  council  (accept- 
ing proposals),  without  signature  by  parties.  People  v.  San  Francisco,  27 
Cal.  655.  1865;  Sacramento  v.  Kirk,  7  Cal.   419;  Logansport  v.  Blakemore, 


Ch,  XIV.]  CONTRACTS.  467 

§  375.  The  assent  of  a  municipal  corporation  to  the 
variation  or  modification  of  a  contract  need  not  necessarily 
be  expressed  by  the  formal  action  or  resolution  of  the  com- 
mon council ;  but  it  may  be  implied  from  acts  relating  to 
the  contract  work  subsequent  to  the  date  of  the  contract.1 

§  376.  Contracts  made  by  Agents — Mode  of  Execution. 
— Where  officers  or  agents  of  a  corporation,  duly  appointed, 
and  acting  within  the  scope  of  cheir  authority  in  executing 
an  instrument  in  behalf  of  the  corporation,  sign  their  own 
names  and  affix  their  own  seals,  such  seals  are  simply  nu- 
gatory, and  the  instrument,  according  to  the  weight  of 
modern  judicial  opinion,  is  to  be  regarded  as  the  simple 
contract  of  the  corporation,  and  will  bind  the  corporation 
and  not  the  individuals  executing  it,  where  the  purpose  to 
act  for  the  corporation  is  manifest  from  the  whole  paper, 
and  where  there  are  no  words  evincing  an  intention  to  as- 
sume a  personal  liability.* 

17  Ind.  318.  How  shown.  San  Antonio  v.  Lewis,  9  Texas,  69.  In  Indian- 
apolis v.  Skeen,  17  Ind.  628,  1861,  it  was  held  that  third  persons  dealing 
with  an  agent  of  the  city  appointed  by  the  council  uto  negotiate  its  bonds  at 
not  less  than  "  a  specified  rate,  were  not  obliged  to  look  to  the  records  of 
the  council  for  either  his  appointment  or  his  instructions,  since  they  were 
not  necessarily  of  record  there;  but  persons  dealing  with  such  an  agent 
are,  of  course,  bound  to  ascertain  the  fact  of  his  appointment  and  the  ex- 
tent of  his  authority,  but  not  his  private  instructions.  Authority  of  agent 
to  negotiate  sales  of  ootids.    Cady  v.  Watertown,  18  Wis.  322. 

1  Messenger  v.  Buffalo,  21  N.  Y.  196,  1860.  Where  certain  work  is  stipu- 
lated to  be  done  under  the  direction  of  a  street  commissioner  of  a  city,  this 
officer  has  authority,  without  a  vote  of  the  council,  to  authorize  extra  work 
to  be  done,  or  materials  to  be  furnished,  where  these  are  rendered  necessary 
by  the  action  of  the  city  authorities  subsequent  to  the  making  of  the  con- 
tract, and  where,  without  such  extra  work  or  materials,  it  would  be  im- 
possible to  fulfill  the  requirements  of  the  contract.  lb.  Modification  of 
contracts  by  unauthorized  officers  not  binding  upon  the  corporation.  Bone- 
steel  v.  Mayor,  &c.  of  New  York,  22  N.  Y.  162,  I860;  Hague  v.  Philadelphia, 
48  Pa.  St.  527.  As  to  changes  in  contracts  by  parol,  see  Hasbrouck  v.  .Mil- 
waukee, 21  Wis.  217,  1866;  compare  Sacramento  v.  Kirk,  7  Cal.  419.  Infra, 
sec.  383.  Acceptance  by  city  of  proposals  to  it;  see  Springfield  v.  Harris, 
107  Mass.  532,  1871. 

2  Regents,  etc.  v.  Detroit,  &c,  12  Mich.  138;  Sweetzer  v.  Mead,  5  Mich. 
107;  Bank  of  Metropolis  v.  Gottschalk,  14  I'd.  lit;  Story  Agency,  sees.  154, 
300,  276,  277;  Bank  of  Columbia  v.  Patterson,  7  Cranch,  299,  807  ;  Hatch  o. 
Barr,  1  Ham.  (Ohio)  390;  Baker  v.  Chambles,  4  G.  Greene  (Iowa)  128;  Lyon 


468 


MUNICIPAL     CORPORATIONS. 


[Ch.  xrv. 


377.  A  few  cases  will  be  referred  to,  illustrating  the 
rule  just  stated.  A  contract  in  relation  to  the  survey  of  a 
city,  a  subject  exclusively  appertaining  to  the  corporation, 

v.  Adamson,  7  Iowa,  501;  1  Am.  Lead.  Cas.  602;  Motta.  Hicks,  1  Cow.  513, 
53-4;  Blanchard  v.  Blackstone,  102  Mass.  343;  Stanton  v.  Camp  (contract 
signed  individually,  with  addition  of  "  committee  "),  4  Barb.  274 ;  Mechan- 
ics' Bank  v.  Bank  of  Columbia,  5  Wheat.  326;  Hopkins  v.  Mehaffy,  11  Serg. 
&  Rawle,  126;  Angell  &  Ames,  sees.  293,  295;  Gale  v.  Kalamazoo,  23  Mich. 
344,  1871 ;  Burrill  v.  Boston,  2  Clifford  C.  C.  590,  1867.  Where  a  town 
clothes  its  agent,  or  its  committee,  with  full  power  to  make  a  contract,  and 
it  is  accordingly  made,  it  is  valid  and  binding,  notwithstanding  there  has 
been  no  formal  acceptance  by  a  vote,  or  even  if  it  be  afterwards  rejected  by 
the  corporation.  Davenport  v.  Hallowell,  10  Maine,  317 ;  Junkins  v.  School 
District,  39  Maine,  220,  1855;  Willard  v.  Newburyport,  12  Pick.  227; 
Kingsbury  v.  School  District,  12  Met.  99,  1846. 

Where  school  directors  gave  an  authorized  bond  for  borrowed  money,  in 
their  individual  names,  as  school  directors,  though  signed  and  sealed  in 
their  individual  names,  the  corporation,  and  not  the  individuals,  are  liable 
thereon.     Heidelberg  School  Dist.  v.  Horst,  62  Pa.  St.  301,  1869. 

The  power  of  a  committee,  appointed  by  a  vote  of  a  town,  "  to  let  out  and 
superintend  the  making "  of  a  highway,  is  completely  executed  by  the 
making  of  a  contract  with  a  third  person  embracing  the  whole  subject  mat- 
ter of  the  vote  and  by  the  superintending  of  the  construction  of  the  high- 
way. And,  therefore,  if  the  person  contracted  with  fails  to  complete  the 
road  according  to  his  contract,  this  is  a  matter  for  the  town  to  deal  with, 
and  the  committee  have  no  power,  without  new  authority  from  the  town,  to 
enter  into  a  contract  with  another  person  for  its  completion.  If  they  do  so, 
and  pay  money  in  pursuance  thereof,  the  town  is  not  liable  to  them  therefor. 
Nor  is  it  liable  if  they  transcend  their  power,  and  make  a  contract  for  a 
more  expensive  road  than  they  were  authorized  to  do.  Keyes  v.  Westford, 
17  Pick.  273,  1835. 

Power  to  a  town  committee  "  to  superintend  the  building  of  a  house  for 
the  town,"  was  adjudged  to  include  the  power  to  make  the  necessary  con- 
tracts, it  not  appearing  that  any  other  or  special  committee  or  agent  was 
appointed  for  that  purpose — the  court  being  of  opinion  that  the  making  of 
contracts  was  essential  to  the  building  of  the  house.  Damon  v.  Granby,  2 
Pick.  345,  1824.  Ante,  chaps.  IX.  X.  Majority  of  committee  must  sign 
contract.  So  held:  Curtis  v.  Portland,  59  Maine,  483,  1871.  Ante,  sec.  221, 
and  note. 

It  has  been  held  in  Upper  Canada  where  work  was  done  under  a  con 
tract  not  made  with  the  corporation  or  any  of  its  known  officers,  but 
merely  with  persons  assuming  to  act  as  a  duly  appointed  committee, 
that  "no  action  would  lie  against  the  corporation.  Stoneburgh  t.  The 
Municipality  of  Brighton,  5  U.  C.  Law  J.  38.  No  action  can  be  sustained 
for  a  breach  of  duty  against  the  head  of  a  corporation  in  not  applying  the 
seal  to  make  a  contract  between  a  corporation  and  an  individual,  founded 
on  a  refusal  (which  if  there  had  been  a  previous  valid  contract;  would  have 


Cn.  XIV.]  CONTRACTS.  469 

was  entered  into  "between  T.  Van  V.,  J.  W.,  C.  D.  C,  a 

committee  appointed  by  the  corporation  of  the  city  of 
Albany  for  that  purpose,  of  the  first  part,  and  John  R.  Jr., 
of  the  second  part."  The  parties  of  the  first  part  agreed  to 
pay  for  the  work  to  be  done,  and  signed  their  individual 
names  and  affixed  their  individual  seals  to  the  agreement. 
The  authority  of  the  committee  to  act  for  the  corporation 
and  to  make  the  contract  being  conceded,  it  was  ruled  that 
they  were  not  personally  liable,  and  that  it  must  be  enforced 
by  and  against  the  corporation.1  In  another  case,  a  contract 
for  the  repair  of  an  engine  house  of  a  city  was  entered  into 
by  the  inspector  of  the  fire  department  in  his  own  name, 
describing  himself  as  UG.  N.  S.,  inspector,  &c,  of  the  first 
part,"  and  signed  in  the  same  way.  It  was,  in  fact,  made 
for  and  on  account  of  the  city,  and  it  was  held  that  the  city 
was  liable  thereon,  although  its  agent  did  not  use  its  name 
in  contracting,  the  court  being  of  opinion,  however,  that  the 
contract  on  its  face  showed  it  was  made  for  the  city.' 

§  378.  So,  where  on  a  sale  of  real  property  by  a  corpo- 
ration, a  memorandum  of  the  sale  was  signed  by  the  parties, 
on  which  it  was  stated  that  the  sale  was  made  to  A.  B.,  the 
purchaser,  and  that  he,  C.  D.,  "mayor  of  the  corporation, 
in  behalf  of  himself  and  the  rest  of  the  burgesses  and  com- 
monalty of  the  borough  of  Caermarthen,  do  mutually  agree 
to  perform  and  fulfill,  on  each  of  their  parts  respectively,  the 
conditions  of  the  sale,"  and  then  came  the  signature  of  the 
purchaser,  and  of  "  C.  D.,  Mayor,"  it  was  held  that  the 

constituted  a  breach  of  it;  in  other  words,  there  cannot  be  a  remedy  against 
the  head  of  a  corporation,  equivalent  to  a  remedy  on  the  contract  against 
the  corporation,  had  the  contract  been  duly  made  so  as  to  create  a  valid 
and  binding  agreement.  Fair  v.  Moore,  3  U.  C.  C.  P.  484;  Harrison  Muni- 
cipal Manual  for  U.  C.  p.  20. 

1  Randall  v.  Van  Vechten,  19  Johns.  GO,  1821 ;  compare,  however,  Fullam 
v.  Brookfield,  9  Allen,  1,  1864,  where  the  court  denies  the  doctrine  of  Ran- 
dall v.  Van  Vechten;  Bank,  &c.  v.  Patterson,  7  Cranch,  299,  and  certain 
dicta  in  Damon  v.  Granby,  2  Pick.  34.5.  But  the  text  states  the  prevailing 
American  rule.  See  also  Dubois  v.  Canal  Company,  4  Wend.  285;  WorreU 
v.  Munn,  1  Seld.  229;  Ford  v.  Williams,  3  Kern.  577,  585;  Richardson  ». 
Scott,  &c.  Co.,  22  Cal.  150. 

2  Robinson  v.  St.  Louis,  28  Mo.  488,  1859. 


470 


MUNICIPAL    CORPORATIONS. 


[Ch.  XIV. 


agreement  was  that  of  the  corporation,  and  not  that  of  the 
mayor  personally  ;  and  that,  consequently,  the  mayor  could 
not  sue  thereon.1 

§  379.  But  the  action  or  contract  of  the  officers  of  a 
public  corporation  in  their  individual  capacity,  is  not 
binding  upon  the  corporate  body.2  For  example :  If  the 
selectmen  of  a  town  in  New  England,  as  individuals, 
request  a  citizen  to  furnish  supplies  to  a  public  enemy,  to 
prevent  violence  to  the  town,  this  gives  no  legal  right  of 
recovery  against  the  town  ;  and  as  the  transaction  was 
wholly  beyond  the  official  duty  of  selectmen,  or  the  duty 
of  the  town  as  a  corporation,  it  was  doubted  whether  a 
regular  vote  to  pay  the  plaintiff  would  have  been  legal, 
though  it  was  admitted  that  a  voluntary  agreement  among 
the  inhabitants  to  this  effect  would  have  been  binding,  being 
founded  on  a  meritorious  consideration,  as  it  was  their 
property,  and  not  that  of  the  town,  which  was  in  danger.3 

§  380.  While  the  agent  of  a  public  corporation,  who  by 
its  vote  or  authority  contracts  for  its  use,  cannot  bind  the 


1  Bowen  v.  Morris,  2  Taunt.  374,  387.  The  case  of  Burrill  v.  Boston,  2 
Clifford  C.  R.  R.  590,  1867,  presents  also,  an  instance  in  which  it  was  con- 
sidered that  a  contract  signed  by  the  mayor  was  one  intended  to  be  made 
on  behalf  of  the  corporation. 

2  Haliburton  v.  Frankford,  14  Mass.  214,  1817;  Butler  v.  Charlestown,  7 
Gray,  12,  1856. 

3  Haliburton  v.  Frankford,  supra ;  Stetson  v.  Kempton,  13  Mass.  272, 
1816.  Burrill®.  Boston,  2  Clifford,  C.  C.  R.  590,  1867.  Ante,  sec.  13.  A 
majority  of  selectmen  may,  by  statute,  bind  a  town  in  New  Hamp- 
shire by  their  written  contract  when  acting  within  the  limits  of  their 
authority.  But  a  contract  signed  by  one  only  of  the  selectmen  in  his  own 
name,  "  for  the  selectmen,"  does  not  bind  the  town,  nor  will  it  be  rendered 
valid  by  proof  that  another  selectman  authorized  him  so  to  sign  the  contract, 
or  by  proof  that  such  was  the  practice  in  the  town.  If  the  corporate  name 
had  been  affixed  by  one,  such  proof  might  have  been  sufficient.  Andover 
v.  Grafton,  7  N.  H.  298,  305 ;  Mason  v.  Bristol,  10  N.  H.  36 ;  Hanover  ». 
Eaton,  3  N.  H.  38.     Powers  of  towns  in  New  England.     Ante,  sees.  12,  13. 

Contracts  made  by  a  majority  oj  the  board  of  aldermen,  without  any  offi- 
cial action  of  the  city  council,  are  not  binding  upon  the  city;  so  decided 
where  counsel  were  thus  employed  who  rendered  legal  services  beneficial  to 
the  corporation.  Butler  v.  Charlestown,  7  Gray,  12,  1856;  see,  also,  Sikes 
v.  Hatfield,  13  Gray,  347,  1859.     See  chapter  on  Corporate  Meetings,  ante. 


€h.  XIV.]  CONTRACTS.  471 

corporation  by  making  a  contract  by  deed:  yet  if  such 
agent  had  authority  to  make  the  contract,  it  is  binding  upon 
the  corporation  as  evidence  of  such  contract.  It  follows 
that  a  contract  of  an  agent  or  committee  of  a  town,  under 
his  or  their  own  seals,  cannot  be  declared  on,  in  covenant 
or  debt,  as  the  deed  of  the  town.  The  form  of  the  remedy 
against  the  town1  is  f<  >r  damages,  or  in  assumpsit  Although 
in  Damon  «.  Granby2  it  was  left  an  open  question,  whether 
a  vote  of  a  town  having;  no  corporate  seal,  expressly  au- 
thorizing an  agent  to  make  a  deed  of  land,  or  other  contract, 
under  seal,  would,  if  executed  according  to  the  power, 
become  technically  the  deed  of  the  town,  no  substantial 
reason  is  perceived  why  such  an  instrument,  thus  executed, 
should  not  be  treated  as  having  all  the  attributes  and 
qualities  of  a  sealed  instrument.  If  the  corporation,  how- 
ever, has  a  common  seal,  which  is  the  case  with  towns  in 
many  of  the  States,  and  with  cities  generally,  and  it  is  affixed 
to  an  instrument  in  pursuance  of  a  vote  of  the  corporation, 
or  by  the  proper  officer,  such  an  instrument  is,  beyond 
doubt,  technically  the  deed  of  the  corporation.3 

§  381.  Contracts  in  Excess  of  Corporate  Power —  Ultra 
Vires  as  a  Defence. — The  general  principle  of  law  is  settled, 
beyond  controversy,  that  the  agents,  officers,  or  even' city 
council,  of  a  municipal  corporation,  cannot  bind  the  corpo- 
ration by  any  contract  which  is  beyond  the  scope  of  its 
powers,  or  entirely  foreign  to  the  purposes  of  the  corpora- 
tion, or  which  (not  being  in  terms  authorized)  is  against 
public  policy.  This  doctrine  grows  out  of  the  nature  of 
such  institutions,  and  rests  upon  reasonable  and  solid 
grounds.  The  inhabitants  are  the  corporators — the  officers 
are  but  the  public  agents  of  the  corporation.  The  duties 
and  powers  of  the  officers  or  public  agents  of  the  corpora- 

1  Randall  v.  Van  Vechten,  19  Johns.  GO,  65,  1821;  Damon  v.  Granby,  2 
Pick.  345,  1824;  compare,  Fullam  v.  Brookfield,  9  Allen,  1;  Bank  of  Colum- 
bia v.  Patterson's  Administrator,  7  Crunch,  229,  and  rule  as  stated  by  Story, 
J.,  300,  1813;  Clark  v.  Cuckfield  Union,  11  Eng.  Law  &  Eq.  442;  Penning- 
ton v.  Taniere,  12  Queen's  B.  1011.     Ante,  sec.  132. 

9  Damon  v.  Granby,  2  Pick.  345,  852,  1824. 

a  lb.  Randall  v.  Van  Vecbten,  19  Johns.  60,  65,  1821.  But  see  Fu  lam 
0.  Brookfield.  9  Allen,  1.      Corporate  seal.     Ante,  sees.  130-132. 


472 


MUNICIPAL     CORPORATIONS. 


[Ch.  XIV. 


tion,  are  prescribed  by  statute  or  charter,  which  all  persons 
not  only  may  know,  but  are  bound  to  know.  The  opposite 
doctrine  would  be  fraught  with  such  danger,  and  accom- 
panied with  such  abuse,  that  it  would  soon  end  in  the  ruin 
of  municipalities,  or  be  legislatively  overthrown.  These 
considerations  vindicate  both  the  reasonableness  and  neces- 
sity of  the  rule  that  the  corporation  is  bound  only  when  its 
agents  or  officers,  by  whom  it  can  alone  act,  if  it  acts  at  all, 
keep  within  the  limits  of  the  chartered  authority  of  the 
corporation.  The  history  of  the  workings  of  municipal 
bodies  has  demonstrated  the  salutary  nature  of  this  principle, 
and  that  it  is  the  part  of  true  wisdom  to  keep  the  corporate 
wings  clipped  down  to  the  lawful  standard.1  It  results 
from  this  doctrine  that  unauthorized  contracts  are  void, 
and  in  actions  thereon  the  corporation  may  successfully 
interpose  the  plea  of  ultra  vires,  setting  up  as  a  defence  its 
own  want,  of  power  under  its  charter  or  constituent  statute 
to  enter  into  the  contract.2    In  favor  of  bona  fide  holders  of 

1  This  subject  is  touched  upon  in  the  concluding  portion  of  chap.  I.  ante. 

2  Post,  chap.  XXIII.  sec.  749 ;  and  see  also  the  following  cases :  Marsh 
v.  Fulton  County,  10  Wall.  676,  1870 ;  Thomas  ®.  Richmond,  12  Wall.  349, 
1870;  Bridgeport  v.  Housatonic  Railroad  Company,  15  Conn.  475,  493, 
1843;  Burrill  ®.  Boston,  2  Clifford  C.  C.  590,  1867;  Martin  v.  Mayor,  &c,  1 
Hill  (N.  Y.)  545,  1841 ;  Overseers,  &c.  ®.  Same,  18  Johns.  382 ;  Donovan  ®. 
New  York,  33  N.  Y.  291 ;  Siebrecht  v.  New  Orleans,  12  La.  An.  496,  1857 ; 
Clark  ®.  Des  Moines,  19  Iowa,  199,  209,  1865;  Loker  ®.  Brookline,  13  Pick. 
343,  348;  Philadelphia  ».  Flanigen,  47  Pa.  St.  21;  Trustees®.  Cherry,  8 
Ohio  St.  564;  Hague  v.  Philadelphia,  48  Pa.  St.  527;  Albany®.  Cunliff,  2 
Comst.  (N.  Y.)  165,  1849,  reversing  S.  C,  2  Barb.  190;  Cuyler  v.  Rochester,. 
12  Wend.  165,  1834;  Hodges®.  Buffalo,  2  Denio,  110,  1846;  Halstead  ®. 
Mayor,  3  Comst.  430,  1850 ;  Martin  v.  Mayor,  1  Hill,  545 ;  Boone  ®.  Utica,  2 
Barb.  104;  Cornell  ®.  Guilford,  1  Denio,  510;  Boyland  ®.  Mayor,  &c.  of 
New  York,  1  Sandf.  (N.  Y.)  27,  1847;  Dill  ®.  Wareham,  7  Mete.  438,  1844; 
Vincent®.  Nantucket.  12  Cush.  103,  105,  1858,  per  Merrick,  J.;  Stetson®. 
Kempton,  13  Mass.  272;  Parsons  ®.  Inhabitants  of  Goshen,  11  Pick.  396; 
Wood  ®.  Lynn,  1  Allen  (Mass.)  108,  1861 ;  Spalding®.  Lowell,  23  Pick.  71; 
Mitchell®.  Rockland.  45  Maine,  496,  1858;  S.  C,  41/5.  363;  Anthony®. 
Cleveland,  12  Ohio,  375,  1861;  Commissioners  ».  Cox,  6  Ind.  403,  1855;  In- 
habitants v.  Weir,  9  lb.  224,  1857;  Smead  ®.  Railroad  Company,  11  lb.  104. 
1858;  Brady  ®.  Mayor,  20  N.  Y.  (6  Smith)  312;  Appleby  ®.  The  Mayor,  &c.,. 
15  How.  Pr.  428;  Estep  v.  Keokuk  County,  18  Iowa,  199,  and  cases  cited 
by  Cole,  J.;  Clark®.  Polk  County,  19  Iowa,  248,  1865.  Supra,  sec.  372; 
post,  sec.  749;  Perry  v.  Superior  City,  23  Wis.  64,  1870. 

Corporation  may  defend  against  unauthorized    contract,    although    its- 


Ch.  XIV.  1  CONTRACTS.  473 

negotiable  securities,  the  corporation  may  be  estopped  to 
avail  itself  of  irregularities  in  the  exercise  of  power  con- 
ferred ;  but  it  may  always  show  that  under  no  circumstances 
could  the  corporation  lawfully  make  a  contract  of  the 
character  in  question.  This  subject  has,  however,  been 
already  referred  to,  and  will  be  considered  in  a  subsequent 
portion  of  the  present  chapter.1 

§  382.  Agreeably  to  the  foregoing  principles,  a  corpo- 
ration cannot  maintain  an  action  on  a  bond  or  a  contract 
which  is  invalid,  as  where  a  city,  without  authority,  loaned 
its  bonds  to  a  private  company,  and  took  from  it  a  penal 
bond,  conditioned  for  the  faithful  application  of  the  city 
bonds  to  works  which  the  city  had  no  power  to  construct  or 
assist  in  constructing.'     So  a  contract  by  a  city  to  waive  its 

seal  is  attached  to  it.  Leavenworth  v.  Rankin,  2  Kansas,  358,  1864;  ante, 
sec.  132. 

Mr.  Justice  Coulter,  in  delivering  the  opinion  in  Allegheny  City  v.  Mc- 
Clurkan,  14  Pa.  St.  81,  expresses  the  opinion  that  a  municipal  corporation 
may  be  liable  for  the  contracts  ultra  vires  of  its  officers,  when  these  are 
publicly  entered  into  with  the  knowledge  of  the  people,  and  not  objected 
to  until  after  the  rights  of  third  persons  have  attached.  Such  a  principle 
is  believed  to  be  both  unsafe  and  unsound ;  the  only  true  and  safe  view 
being  that  all  persons  are  bound  to  take  notice  of  the  powers  and  authority 
which  the  law  confers  upon  the  officers  of  such  corporations.  See  Loker  v. 
Brookline,  13  Pick.  343.  Auditing  and  paying  part  of  a  claim  presented, 
accompanied  with  a  denial  of  liability  for  the  residue,  does  not  estop  the 
debtor  corporation  from  contesting  the  residue,  even  though  it  be  upon 
grounds  which  show  the  former  allowance  to  have  been  improper.  People 
v.  Supervisors,  1  Hill  (N.  Y.)  362,  1841.  In  an  action  on  a  contract  lor 
doing  work  which  a  municipal  corporation  had  the  power  to  make,  it  is  no 
defence  that  the  city  ought  to  have  adopted  some  less  expensive  means  of 
accomplishing  the  purpose  in  view.    Livingston  v.  Pippin,  31  Ala.  542,  1858. 

The  case  of  The  State  v.  Buffalo,  2  Hill  (N.  Y.)  434,  determines  an  in- 
teresting point.  Arms  belonging  to  the  state  were  loaned  to  the  city 
authorities  to  suppress  disorderly  assemblages.  The  keeper  of  the  arsenal 
had  no  right  to  make  the  loan,  but  it  was  made  in  good  faith,  and  the  bond 
of  the  city  taken  for  their  return  on  demand.  The  city  being  sued  on  this 
bond,  made  the  point  that  it  was  void  for  illegality,  but  the  court  regarded 
it  rather  as  a  bona  fide  excess  of  authority  simply,  and  held  that  though  the 
loan  was  unauthorized  the  state  might  waive  the  tort  committed  on  the 
property  and  seek  a  remedy  upon  the  bond. 

1  Ante,  sec.  108;  ir.fra,  sees.  415-426. 

*  City  Council  t>.   Plank  Road   Company,  31  Ala.  76,  1857      See  Mayor 


474 


MUNICIPAL     CORPORATIONS. 


[Ch.  XIV. 


right  to  go  on  with  the  laying  out  of  a  street  or  not,  as  it 
might  choose,  is,  it  seems,  against  public  policy,  and  it  ip 
void  if  it  amounts  to  a  surrender  of  its  legislative  discretion. 
So  a  promise  to  pay  a  public  corporation,  or  their  agents, 
a  premium  for  doing  their  duty,  is  illegal  and  void  ;  and  a 
contract  will  not  be  sustained  which  tends  to  restrain  or  con- 
trol the  unbiased  judgment  of  public  officers.  But  a 
promise  by  individuals  to  pay  a  portion  of  the  expenses  of 
public  improvements  does  not  necessarily  fall  within  this 
principle,  and  such  a  promise  is  not  void  as  being  against 
public  policy  ;  and  if  the  promisors  have  a  peculiar  and 
local  interest  in  the  improvement,  their  promise  is  not  void 
for  want  of  consideration,  and  may  be  enforced  against 
them.2  So,  on  the  other  hand,  a  party  making  with  a  city 
a  contract  which  is  ultra  vires,  is  not  estopped,  when  sued 
thereon  by  the  corporation  for  damages,  to  set  up  its  want 
of  authority  to  make  it.3 

&c.  v.  Winter,  29  lb.  651;    Halstead  «.  Mayor,  &c,  3  Comst.  430;  S.  C,  5 
Barb.  218 ;  Bridgeport  v.  Housatonic  Railroad  Company,  15  Conn.  475,  493. 

1  Martin  v.  Mayor,  &c,  1  Hill  (N.  Y.)  545,  1841;  ante,  sec.  61.  As  to 
public  policy,  see  Ohio,  &c.  Company  v.  Merchants,  &c.  Company,  11  Humph. 
(Tenn.)  1;  ante,  chap.  XII. 

Corrupt  agreements  with  aldermen,  to  influence  them  to  a  particular  course 
in  the  discharge  of  official  duties,  are,  of  course,  void,  no  matter  to  ivhom 
executed.     Cook  v.  Shipman,  24  111.  614. 

Contracts  with  municipal  officers.     Ante,  sees.  221,  n,  230,  371,  n. 

2  Townsend  v.  Hoyle,  20  Conn.  1,  1849.  This  case  holds  that  a  promise 
by  the  defendants  to  pay  the  city  the  expense  of  laying  a  certain  street  was 

.binding;  and  Ellsicorth,  J.,  in  delivering  the  opinion,  said:  "We  cannot 
assent  to  the  proposition  that  a  promise  by  individuals  to  pay  a  part  of  the 
expenses  of  public  improvements,  ordered  by  public  authority,  is,  of  course, 
illegal  and  void.  The  amount  or  cost  may  properly  enough  enter  into  the 
question  of  expediency  or  necessity.  If  made  in  one  way  or  in  one  place, 
i  will  be  much  better  for  the  public,  though  more  expensive;  but  individ- 
uals specially  benefited  stand  ready,  by  giving  their  land,  their  money,  or 
their  labor,  to  meet  the  extra  expense.  Will  these  promises  be  void,  as 
being  without  consideration,  or  against  public  policy  ?  We  think  not." 
See  chapter  on  Streets,  post ;  Springfield  v.  Harris,  107  Mass.  532. 

8  City  Council  v.  Plank  Road  Company,  31  Ala.  76,  1857;  Steam  Naviga- 
tion Company  v.  Dandridge,  8  Gill  &  J.  '248,  319,  320;  Hodges  v.  Buffalo,  2 
Denio,  110.  If  a  corporation  has  received  money  in  advance,  on  a  contract 
void  on  account  of  want  of  authority  to  make  it,  and  afterwards  refuses  to 
fulfill  the  contract,  the  party  advancing  the  money  may,  without  demand. 


Ch.  XIV.]  CONTRACTS.  475 

§  383.  Implied  Contracts. — The  present  state  of  the 
authorities  clearly  justifies  the  opinion  of  Chancellor  Ke?it, 
that  corporations  may  be  bound,  by  implied  contracts 
within  the  scope  of  their  powers,  to  be  deduced  by  inference 
from  authorized  corporate  acts,  without  either  a  vote,  or 
deed,  or  writing.1  This  doctrine  is  ap2Dlicable  equally  to 
public  and  private  corporations,  but  in  applying  it,  how- 
ever, care  must  be  taken  not  to  violate  other  principles  of 
law.4     Thus  it  is  obvious  that  an  implied  promise  cannot  be 

recover  it  back  in  an  action  for  money  bad  and  received.  Dill  v.  Warehani. 
1  Met.  438,  1844.  In  this  case  the  corporate  defendant  undertook,  without 
authority,  to  transfer  to  the  plaintiff  the  right  of  taking  oysters  within  its 
limits;  contract  held  wholly  void.  See,  also,  McCracken  v.  San  Francisco, 
16  Oal.  591.  Infra,  sees.  383,  384.  Compare  Herzo  v.  San  Francisco,  33  Cal. 
134.  That  the  contract  of  agents  within  the  scope  of  corporate  power  may 
be  ratified,  or  a  contract  implied  from  the  enjoyment  of  the  benefit  of  the 
consideration.  San  Francisco  Gas  Company  v.  San  Francisco,  9  Cal.  453, 
1858,  opinion  of  Field,  J. ;  Backman  v.  Charlestown,  42  N.  H.  125.  See  Bis- 
sell  v.  Railroad  Company,  22  N.  Y.  258.     Post,  sec.  750. 

1  2  Kent  Com.  291;  Bank  of  Columbia  v.  Patterson,  7  Cranch,  299  (1813 
— a  leading  American  case);  Mott  v.  Hicks,  1  Cow.  513;  Dunn  v.  Rector, 
<fcc,  14  Johns.  118;  Bank  v.  Dandridge,  12  "Wheat.  74;  Perkins  v.  Insurance 
Company,  4  Cow.  645 ;  Davenport  $.  Peoria  Insurance  Company,  17  Iowa,  276, 
and  cases  cited  by  Cole,  J.  ;  American  Insurance  Company  «.  Oakley,  9 
Paige,  496;  Magill  v.  Kauffman,  4  Serg.  &  Raw.  317;  Randalls.  Van  Vech- 
ten,  19  Johns.  60;  Wayne  County  v.  Detroit,  17  Mich.  390;  Lesley  v.  White, 
1  Spears  (S.  Car.)  Law,  31;  Canaan  v.  Derush,  47  N.  H.  211  ;  Lebanon  v. 
Health,  lb.  353;  Adams  v.  Farnsworth,  15  Gray,  423;  Shrewsbury  v.  Brown, 
25  Vt.  197;  Gassett  v.  Andover,  lb.  342;  Peterson  v.  Mayor,  &c.  of  New 
York,  17  N.  Y.  449,  453,  1858;  Danforth  v.  Schoharie  Turnpike  Company, 
12  Johns.  227;  Angell  &  Ames,  sec.  237;  Maher  v.  Chicago,  38  111.  266; 
Frankfort  Bridge  Company  v.  Frankfort,  18  Ben.  Mon.  41.  Supra,  sec. 
374.  Broom  Com.  on  Com.  Law,  561-570,  where  the  English  cases  are 
collected. 

2  Petersen  v.  Mayor,  &c.  of  New  York,  17  1ST.  Y.  449,  453  ;  Poultney  v. 
Wells,  1  Aiken  (Vt.)  180;  Where  a  city  contracted  with  a  railroad  company 
to  do  certain  work,  and  the  company  employed  persons  to  do  it,  there  is  no 
implied  contract  on  the  part  of  the  city  to  pay  them,  although  the  city  saw 
them  at  work.     Alton  v.  Mulledy,  21  111.  76,  1859. 

Must  be  an  authorized  request.  "No  person  can  make  himself  a  creditor  of 
another  by  voluntarily  discharging  a  duty  which  belongs  to  that  other." 
Strong,  J.,  in  Salsbury  v.  Philadelphia.  41  Pa.  St.  303;  Baltimore  v.  1'oult- 
ney,  25  Md.  18;  Jeffcrsonville  v.  Ferry  Boat,  35  Ind.  19,  1870.  In  Seibrechl 
c.  New  Orleans,  12  La.  An.  490,  1857,  carpets  were  furnished  for  certain 
corporation  courts,  by  order  of  the  clerks  or  judges,  but  without  any  author- 


476 


MUNICIPAL    CORPORATIONS. 


[Ch.  XIV. 


raised  against  a  corporation,  where  by  its  charter  it  can  only 
contract  in  a  prescribed  way,  except  it  be  a  promise  for 
money  received,  or  property  appropriated  under  the  con- 
tract.1 So  where  the  corporation  orders  local  street  im- 
provements to  be  made,  for  which  the  abutters  are  the 
parties  ultimately  liable,  and  which,  by  the  charter,  must 
be  made  in  a  prescribed  mode  ;  if  made  without  any  con- 
tract, or  a  valid  one,  the  doctrine  of  implied  liability  does 
not  apply  in  favor  of  the  contractor,  unless,  indeed,  the 
corporation  has  collected  the  amount  from  the  adjoining 
owners  and  has  it  in  its  treasury.2 

§  384.  "The  doctrine  of  implied  municipal  liability,'''' 
says  Mr.  Chief  Justice  Field,  in  a  case  where  the  subject 
underwent  very  thorough  examination,  "applies  to  cases 
where  money  or  other  property  of  a  party  is  received  under 
such  circumstances  that  the  general  law,  independent  of  ex- 
press contract,  imposes  the  obligation  upon  the  city  to  do 
justice  with  respect  to  the  same.  If  the  city  obtain  money 
of  another  by  mistake,  or  without  authority  of  law,  it  is  her 

ity  of  the  common  council,  and  were  worn  out  before  the  plaintiff  pre- 
sented his  bill.  It  was  contended  that  the  city  was  liable  ex  equo  et  bono, 
having  used,  and  not  returned  the  carpets;  but  it  did  not  appear  that  the 
council  knew  that  they  had  been  purchased  lor  the  city,  and  were  being 
used  in  its  buildings.  The  court  denied  the  liability,  saying  that  "  The 
only  safe  rule  is  to  hold  that  the  city  cannot  be  bound  for  any  contract 
made  without  its  authorization,  expressed  by  a  resolution  of  the  common 
council."  That  an  unauthorized  contract,  however  advantageous,  does  not 
bind  the  corporation,  see  Loker  v.  Brookline,  13  Pick.  343;  Jones  v.  Lan- 
caster, 4  Pick.  149 ;  Wood  v.  Waterville,  5  Mass.  294. 

A  contract  was  implied  on  the  part  of  a  city,  which  was  bound  to  sup- 
port its  paupers  and  which  had  refused  to  pay  a  person  who  had  furnished 
a  pauper  with  necessaries.  Seagraves  v.  Alton,  13  111.  371.  Here  it  will  be 
noticed  that  there  was  an  express  refusal  on  the  part  of  the  city  to  support 
the  pauper,  and  yet  a  promise  was  implied.  This  implication  is  a  pure  fic- 
tion to  support  what  the  court  regarded  as  a  just  claim. 

1  McSpedon  v.  Mayor  of  New  York,  7  Bosw.  601;  McCracken  v.  San 
Francisco,  16  Cal.  591 ;  Piemental  v.  San  Francisco,  21  Cal.  351. 

4  Argenti  v.  San  Francisco,  16  Cal.  255— opinion  of  Field,  C.  J.  A 
u.unicipal  corporation  was  holden  liable,  under  its  charter,  upon  an  implied 
assumpsit  to  collect  and  pay  over  assessments  awarded  to  property  owners, 
for  the  opening  of  a  street.  Wheelers.  Chicago,  24 ID.  105,  1860;  see  infra. 
eecs.  388,  400,  403. 


Ch.  XIV.]  CONTRACTS.  477 

duty  to  refund  it — not  from  any  contract  entered  into  by 
her  ou  the  subject,  but  from  the  general  obligation  to  do 
justice,  which  binds  all  persons,  whether  natural  or  artificial. 
If  the  city  obtain  other  property  which  does  not  belong  to 
her,  it  is  her  duty  to  restore  it ;  or  if  used  by  her,  to  render 
an  equivalent  to  the  true  owner,  from  the  like  general 
obligation  :  the  law,  which  always  intends  justice,  implies 
a  promise.  In  reference  to  money  or  other  property,  it  is 
not  difficult  to  determine  in  any  particular  case,  whether  a 
liability  with  respect  to  the  same  has  attached  to  the  city. 
The  money  must  have  gone  into  her  treasury,  or  been  ap 
propriated  by  her,  and  when  it  is  property  other  than 
money,  it  must  have  been  used  by  her,  or  be  under  her  con- 
trol. But  with  reference  to  services  rendered,  the  case  is 
different.  Their  acceptance  must  be  evidenced  by  ordinance 
[or  express  corporate  action]  to  that  effect.  If  not  originally 
authorized,  no  liability  can  attach  upon  any  ground  of  im- 
plied contract.  The  acceptance  upon  which  alone  the  obli- 
gation to  pay  could  arise,  would  be  wanting.  As  a  general 
rule,  undoubtedly,  a  city  corporation  is  only  liable  npon 
express  contracts,  authorized  by  ordinance  [or  other  dne 
corporate  proceedings].  The  exceptions  relate  to  liabilities 
from  the  use  of  money  or  other  property  which  does  not 
belong  to  her,  or  to  liabilities  springing  from  the  neglect  of 
duties  imposed  by  the  charter,  from  which  injuries  to 
parties  are  produced.  There  are  limitations  even  to  these 
exceptions,  in  many  instances,  as  where  property  or  money 
is  received  in  disregard  of  positive  prohibitions ;  as,  for 
example,  the  city  would  not  be  liable  for  moneys  received 
upon  the  issuance  of  bills  of  credit,  as  this  would  be,  in 
etiect,  to  support  a  proceeding  in  direct  contravention  oi 
inhibition  of  the  charter."1     Nor  for  money  received  for 

1  Per  Field,  C.  J.,  in  Argcnti  v.  San  Franscisco,  16  Cat.  255,  282,  1860. 

''The  law,"  says  aD  eminent  Judge,  "never  implies  a  promise  to  pay 
unless  some  duty  creates  such  an  obligation,  and  more  especially  it  never 
implies  a  promise  to  do  an  act  contrary  to  duty  or  contrary  to  law.  As- 
sumpsit may  be  maintained  against  a  municipal  corporation  in  certain 
upon  an  implied  promise,  but  the  better  opinion  is  that  a  promise  to  pay 
can  never  be  implied  in  a  ca?e  where  the  corporation  possesses  no  power  to 
contract."  Per  Clifford,  J.,  in  Burrill  v.  Boston,  2  Clifford  C.  C.  590,  596. 
1867.     The  subject  is  further  expounded  by  the  same  learned  justice  in  hi* 


478 


MUNICIPAL     CORPORATIONS. 


[Ch.  XI\ 


notes  issued  by  it  to  circulate  as  money,  in  violation  of  an 
express  statute  and  the  public  policy  of  the  state.1 

§  385.     Ratification    of    Unauthorized    Contract. — A 

opinion  in  The  Collector  v.   Hubbard,    12  Wall.    1,    12,   1870.     See,  also 
Curtis  v.  Fiedler,  2  Black,  478. 

1  Thomas  v.  Richmond,  12  Wall.  349,  1870.  The  priDciples  upon  which 
the  decision  rests  are  admirably  stated  in  the  opinion  of  Mr.  Justice 
Bradley. 

Illustrations  of  implied  liability. — City  is  liable  for  gas  furnished  to  it 
with  knowledge  of  the  council,  though  no  ordinance  or  resolution  was 
passed  authorizing  it  to  be  furnished.  Gas  Company  v.  San  Francisco,  9 
Cal.  453,  466,  1858 — opinion  of  Field,  J.  If  a  city  sells  its  void  bonds,  there 
is  an  implied  assumpsit  to  repay  the  purchase-money.  Paul  v.  Kenosha,  22 
Wis.  266,  1867.  Where  a  bridge  corporation  was  requested  by  the  city 
authorities  to  communicate  to  them  the  terms  upon  which  the  city  might 
attach  its  water  pipes  to  the  bridge,  to  carry  the  water  from  one  side  of  the 
river  to  the  other,  which  the  bridge  company  answered,  fixing  a  sum,  upon 
which  the  city  council  took  no  action,  but  proceeded  to  extend  the  water 
works  and  used  the  bridge,  the  court  held  the  city  was  liable.  Bridge 
Company  v.  Frankfort.  18  Ben.  Mon.  41,  1857.  Broom  Com.  on  Com.  Law. 
567,  where  the  English  cases  are  cited  in  which  corporations  have  been 
held  liable  by  reason  of  enjoying  the  benefits  resulting  from  particular  con- 
tracts.    Post,  sees.  750,  751. 

Mr.  Harrison,  in  his  excellent  "Municipal  Manual  for  Upper  Canada," 
has  digested  the  decisions  in  the  province  on  the  subject  of  the  power  of 
corporations  to  contract.  He  says  (2nd  ed.  p.  19),  "  It  is  a  principle  applicable 
to  all  corporations  that  they  must  contract  under  seal.  To  this  principle 
there  are  some  exceptions.  One  of  some  moment  has  been  created  with 
regard  to  municipal  corporations.  It  is  that  such  a  corporation  is  liable  to 
be  sued  in  an  action  of  debt  on  simple  contract  for  the  price  of  goods 
furnished,  or  labor  done  at  their  request  and  accepted  by  them.  Fetterly 
v.  The  Municipality  of  Russell  and  Cambridge,  14  U.  C.  Q.  B.  433.  Though 
in  such  a  case  there  be  no  contract  under  seal,  the  law  implies  an  under- 
taking by  a  corporation  to  pay  for  labor  and  materials  employed  in  their 
service,  and  of  which  they  have  accepted  and  are  enjoying  the  benefit,  pro- 
vided the  purpose  for  which  the  labor  and  materials  have  been  applied  is 
one  clearly  within  the  legitimate  object  of  their  character.  Bartlett  v.  The 
Municipality  of  Amherstburgh,  14  U.  C.  Q.  B.  152;  Fetterly  v.  The  Munici 
pality  of  Russell  and  Cambridge,  14  U.  C.  Q.  B.  433;  Pirn  v.  The  Municipal 
Council  of  Ontario,  9  U.  C.  C.  P.  304;  Perry  v.  The  Corporation  of  Ontario, 
23  L".  C.  Q.  B.  391;  Nicholson  v.  The  Guardians  of  the  Bradford  Union,  1 
L.  R.  Q.  B.  620.  The  exception,  however,  does  not  extend  to  executory 
contracts,  such  as  work,  &c,  to  be  done,  but  is  confined  to  work  in  fact 
done  and  accepted.  McLean  v.  The  Town  Council  of  the  Town  of  Brant- 
ford,  16  U.  C.  Q.  B.  347;  Wingate  v.  The  Enniskillen  Oil  Refining  Com- 
pany, 14  U.  C.  C.  P.  379." 


Ch.  XIV.]  CONTRACTS.  479 

municipal  corporation  may  ratify  the  unauthorized  ants 
and  contracts  of  its  agents  or  officers,  which  are  within  the 
corporate  powers,  but  not  otherwise.  Ratification  may  be 
inferred  from  acquiescence  after  knowledge  of  all  the 
material  facts,  or  from  acts  inconsistent  with  any  other  sup- 
position. The  same  principle  is  applicable  to  corporations 
as  to  individuals.1  The  employment,  however,  by  a  muni- 
cipal council,  of  an  attorney  to  defend  a  policeman  charged 
with  an  assault,  does  not  adopt  his  act  so  as  to  render  the 
city  liable  for  the  damages  recovered  against  him.''1 

§  386.  Where  work  done  for  a  corporation,  without 
complete  legal  authorization,  is  beneficial  to  it,  and  the 
price  reasonable,  strong  evidence  of  the  assent  of  the  cor- 
poration is  not  required  ;  but  such  assent  must  be  shown. 
Ratification  of  the  acts  of  a  committee  in  building  upon  the 

'  People  v.  Swift,  31  Cal.  26,  1866 ;  Bleu  v.  Bear  River  Company,  20 
Cal.  602,  1862;  Peterson  v.  Mayor,  17  JST.  Y.  449,  453,  1858,  and  authorities 
cited,  reversing  S.  C,  4  E.  D.  Smith,  413;  San  Francisco  Gas  Company  v. 
San  Francisco,  9  Cal.  453;  Hoyt  v.  Thompson.  19  N.  Y.  207,  218,  1859; 
Howe  v.  Keeler,  27  Conn.  538;  Emerson  v.  Xewberry,  13  Pick.  377;  Hodges 
v.  Buffalo,  2  Denio,  110,  1846;  5  lb.  567;  People  v.  Flagg,  17  N.  Y.  584; 
S.  C,  16  How.  Pr.  R.  36;  Brady  v.  Mayor,  &c.  of  New  York,  20  N.  Y.  312, 
affirming  S.  C,  2  Bosw.  173;  Delafield  v.  State  of  Illinois,  2  Hill  (N.  Y.) 
159,  176,  1841;  S.  C,  8  Paige,  531,  and  26  Wend.  192;  Mills®.  Gleason,  8 
Am.  Law  Reg.  693;  S.  C,  11  Wis.  470,  1860;  Dubuque,  &c.  College  v. 
Township,  &c,  13  Iowa,  55;  Merrick  v.  Plank  Road  Company,  11  Iowa, 
74,  per  Wright,  J.;  Detroit  v.  Jackson,  1  Doug.  (Mich.)  106;  Crawshaw  v. 
Roxbury,  7  Gray,  374;  Burrill  v.  Boston,  2  Clifford  C.  C.  590,  1867. 

A  municipal  corporation  may  ratify  unauthorized  expenditures,  not  ultra 
vires,  which  they  deem  beneficial  to  it,  and  such  ratification,  as  in  the  case 
of  natural  persons,  is  equivalent  to  previous  authority.  Backman  v.  Charles- 
town,  42  N.  H.  125;  Harris  v.  School  District,  8  Fost.  (N.  H.)  65;  Wilson 
v.  School  District,  32  N.  H.  118;  Keyser  v.  School  District,  35  N.  H.  477; 
Episcopal  Society  v.  Episcopal  Church,  1  Pick.  372;  Bank  v.  Patterson,  7 
Cranch,  299;  Randall  v.  Van  Veohten,  19  Johns.  60;  Trott  v.  Warren,  2 
Fairf.  (Maine)  227;  Topsham  v.  Rogers,  42  Vt.  189;  People  v.  Swift,  31 
Cal.  26.  In  DeGrave  v.  Monmouth,  19  Eng.  C.  L.  300,  it  was  held  that  the 
examination  of  weights  ami  measures,  which  had  been  ordered  by  a  mayor 
de facto,  and  which  were  the  subject  of  the  controverted  contract,  at  a 
meeting  of  the  corporation,  and  the  subsequent  use  of  some  of  them,  re- 
cognized the  contract  for  their  purchase  and  made  the  corporation  liable 
to  pay  for  them.     Infra,  sees.  387,  651;  Broom   Coin,  on  Com.  Law,  667. 

2  Buttrick  v.  Lowell,  1  Allen  (Mass.)  172.  1861.     Post,  sees.  399,  773. 


480 


MUNICIPAL     CORPORATIONS. 


[Cn.  XIV. 


land  of  the  district  a  more  expensive  house  than  they  were 
authorized  to  do  by  the  vote  of  the  corporation,  cannot  be 
inferred  from  the  mere  fact  that  the  school  is  kept  in  it  for 
a  few  weeks,  there  being  no  evidence  that  the  corporation 
had  knowledge  of  the  over  expenditure,  or  had  taken  any 
action  on  the  subject.1 

1  Wilson  v.  School  District,  32  N.  H.  118,  1855.  See,  further,  as  to  effect 
of  use  as  a  ratification  :  Kingman  v.  School  District,  2  Cush.  425  ;  Davis  v. 
School  District,  24  Maine,  349 ;  Lane  v.  School  District,  10  Met.  462  ;  Chap- 
lin v.  Hill,  24  Vt.  (1  Dean)  628;  Fishery  School  District,  4  Cush.  294; 
Taft  v.  Montague,  14  Mass.  285 ;  Keyser  v.  School  District,  35  N.  H.  477 ; 
Pratt  v.  Swanton,  15  Vt.  147  (use  of  bridge  by  public). 

In  Wilson  v.  School  District,  above  cited,  Mr.  Justice  Bell  well  remarks: 
"  In  most  cases  where  work  and  labor  is  performed  upon  real  estate  by  con- 
tract, the  mere  fad  that  the  owner  makes  vse  of  the  building  or  structure 
built  upon  his  land,  furnishes  no  evidence  of  approval  or  acceptance,  be- 
cause he  has  no  choice  to  reject  it.  Alone,  the  use  of  such  buildings  gives 
no  evidence  of  acceptance.  Accompanied  by  silence,  and  absence  of  com- 
plaint, where  to  complain  would  be  natural  and  suitable,  or  by  any  circum- 
stance indicating  acquiescence,  it  would  be  sufficient."  32  N.  H.  125.  As 
to  effect  of  acceptance  of  public  worlc  by  the  agents  of  the  town,  see  Wad- 
leigh  v.  Sutton,  6  N.  H.  15,  1832.  Of  school  house  built  upon  a  quantum 
meruit  employment  by  a  committee,  but  without  a  legal  contract.  Kimball 
v.  School  District,  28  Vt.  8,  1855.  See,  also,  Corwin  v.  Wallace,  17  Iowa, 
334 ;  Zottman  v.  San  Francisco,  20  Cal.  96  (valuable  discussion) ;  Jordan  v. 
School  District,  38  Maine,  164,  1854;  Reichard  v.  Warren  Co.,  31  Iowa, 
381,  1871.  Surveyor  of  highways  cannot  recover  of  the  town  for  work  volun- 
tarily performed,  there  being  no  contract,  not  even  if  beneficial.  Sikes  v. 
Hatfield,  13  Gray,  347,  1859.     Infra,  sees.  388,  400. 

A  public  corporation  is  not  liable  for  work  done  against,  or  even  with- 
out, its  direction  or  authority  (such  as  building  a  bridge,  road,  school  house, 
&c),  although  these  are  afterwards  used  by  the  public  or  the  district.  Lokei 
v.  Brookline,  13  Pick.  343,  1832;  Knowlton  v.  Inhabitants,  &c.,  14  Maine 
(2  Shep.)  25,  where  note  critique  on,  and  remarks  of  C.  J.  Mellen,  as  to 
Hayden  v.  Madison,  7  Greenl.  79;  Morrell  v.  Dixfield,  30  Maine  (17  Shep.) 
157,  160;  Davis  v.  School  District,  24  Maine  (11  Shep.)  349;  Hayward  v. 
School  District,  2  Cush.  419,  1848;  lb.  426;  Moor  v.  Cornville,  13  Maine, 
293,  1836,  where  the  action  was  brought  by  the  surveyor  or  supervisor  of 
highways,  who  built  a  bridge  without  pursuing  the  course  pointed  out  by 
law.  Allen  «.  Cooper,  22  Maine,  133  (deciding  that  the  power  of  a  committee 
with  authority  to  contract  to  make  a  road  doe3  not  embrace  power  to  ac- 
cept the  work  or  waive  performance).  But  if  the  work  be  done  under  be- 
lief of  authority,  as  where  it  was  performed  under  a  contract  with  a  com- 
mittee who  assumed  to  have  authority,  'out  who,  in  fact,  had  none,  then  if 
the  corporation  accept  it,  or  even  knowingly  avail  itself  of  it,  it  will 
be  liable  to  pay  a  reasonable  compensation,  and  a  promise  thus  to  pay  may 


Ch.  XIV.]  CONTRACTS.  481 

387.  The  ratification,  whatever  its  form,  must  be  by  the 
'principal  or  authorized  agents.  This  is  well  illustrated 
b}r  a  case  where,  by  statute,  certain  agents  or  officers  of  a 
State  were  authorized  to  borrow  money  for  public  use,  and 
for  that  purpose  to  sell  its  bonds  at  not  less  than  their  par 
value.  They  exceeded  their  power  by  selling  for  less  than 
■par,  and  on  credit.  It  was  contended  that  this  contract  was 
ratified,  because  the  governor,  after  he  knew  of  the  con- 
tract, signed  the  bonds  and  caused  them  to  be  delivered,  and 
because  the  auditor  and  some  of  the  other  state  officers 
acted  under  the  contracts,  drawing  money  and  receiving 
payments.  But  it  was  held  that  these  officials  were  likewise 
agents  of  limited  authority — that,  as  they  would  have  had 
no  power  to  make  the  contracts  originally,  they  could  not 
ratify  them  ;  that  ratification  must  come  from  the  principal 
— the  State — represented  by  its  legislature.1 

be  implied  on  the  part  of  a  corporation  from  the  acts  of  its  general  agent, 
or  an  agent  with  powers  of  a  general  character  [?].  Abbot  v.  Herman,  7 
Greenl.  118;  Hayden  v.  Madison,  lb.  79.  "Perhaps  these  two  cases  carry 
the  doctrine  of  the  implied  responsibility  of  corporations  as  far  as  it  ought 
to  be  carried."  Per  Emery,  J.,  in  Ruby  v.  Abysm.  Society,  15  Maine,  306, 
308,  1839.  As  to  extent  of  powers  of  New  England  towns,  see  ante,  sees. 
12,  13.  And  see,  particularly,  Jordan  v.  School  District,  and  other  cases 
cited,  supra;  Baltimore  v.  Reynolds,  20  Md.  1.  1862;  Hague  v.  Philadelphia, 
48  Pa.  St.  527. 

1  Delafield  v.  State  of  Illinois,  2  Hill  (N.  Y.)  159,  175,  where  difference 
between  ratification  by  a  state  and  by  other  corporations  and  individuals  is 
clearly  set  forth  by  Bronson,  J. ;  affirming  S.  C,  8  Paige,  531 ;  S.  C.  further, 
26  Wend.  192.  In  further  illustration  of  the  text,  see  Hague  v.  Philadelphia, 
48  Pa.  St.  527 ;  Hotchin  v.  Kent,  8  Mich.  526 ;  Marsh  v.  Fulton  County,  10 
Wall.  676,  1870;  Dubuque,  &c.  College  v.  Dubuque,  13  Iowa,  555;  Estey  >\ 
Inhabitants  of  Westminster,  97  Mass.  324;  Branham  v.  San  Jose,  24  Cal. 
585.     Attorney  General  v.  Lathrop,  24  Mich.  235,  1872. 

In  applying  the  doctrine  that  unauthorized  corporate  acts  may  be  ratyfii  d, 
other  principles  of  law  must  be  borne  in  mind.  The  care  which,  in  this 
respect,  should  be  observed,  is  very  clearly  set  forth  by  Denio,  J.,  in  giving 
judgment  in  Peterson  v.  Mayor,  &c.  of  New  York,  17  N.  Y.  449,  454,  1858. 
"For  instance,  no  sort  of  ratification  can  make  good  an  act  without  the 
scope  of  the  corporate  authority.  So  where  the  charter  or  a  statute  binding 
upon  the  corporation  has  committed  a  class  of  acts  to  particular  officers  oi 
agents,  other  than  the  governing  body,  or  where  it  has  prescribed  certain 
formalities  as  conditions  to  the  performance  of  any  description  of  corporate 
business,  the  proper  functionaries  must  act,  and  the  designated  forms  mils' 
be  observed,  and  generally  no  act  of  recognition  can  supply  a  defect  in 
81 


482  MUNICIPAL     CORPORATIONS.  [Ch.  XPV. 

§  388.  Letting  to  the  Lowest  Bidder. — Where  the 
charter  or  incorporating  act  requires  the  officers  of  the  city 
to  award  contracts  to  the  lowest  bidder,  a  contract  made  in 
violation  of  its  requirements  is  illegal ;  and  in  an  action 
brought  on  such  contract  for  the  work,  the  city  may  plead 
its  illegality  in  defence.1 

these  respects."  Brady  v.  Mayor,  &c,  20  N.  Y.  312;  Hodges  v.  Buffalo,  2 
Denio  (N.  Y.)  110;  17  N.  Y.  584;  Gates  v.  Hancock,  45  N.  H.  528;  Reilly 
v.  Philadelphia,  60  Pa.  St.  467.     Supra,  sees.  385,  386. 

Where,  the  corporation  can  only  act  by  ordinance,  the  ratification  must  be 
by  ordinance.  McCracken  v.  San  Francisco,  16  Cal.  591,  1860;  Piemental  v. 
San  Francisco,  21  Cal.  351;  Cross  v.  Morristown,  18  N.  J.  Eq.  305,  1867. 
Ante,  chap.  XII. 

Legislature  may,  within  constitutional  limits,  ratify  or  authorize  ratifica- 
tion. Campbell  v.  Kenosha,  5  Wall.  194;  Supervisors  v.  Schenck,  lb.  772; 
Keithsburg  v.  Frick,  34  111.  405 ;  Mills  v.  Gleason,  11  Wis.  470 ;  Winn  v. 
Macon,  21  Geo.  275;  Grogan  v.  San  Francisco,  18  Cal.  590,  1861;  Hasbrouck 
v.  Milwaukee,  21  Wis.  217,  1866;  Mills  v.  Charleton,  29  Wis.  400,  1872. 
Ante,  sec.  46;  sec.  106,  note.  In  Shawnee  County  v.  Carter,  2  Kansas,  115, 
1863,  the  Supreme  Court  of  Kansas  held  invalid,  as  not  being  within  the 
rightful  scope  of  legislative  power,  an  act  of  the  legislature  which  declared 
valid  and  binding  bonds  which  had  been  issued  by  the  county  officers  on 
account  of  the  county  court  house,  and  which  bonds  were  not  enforceable 
against  the  county  because  differing  in  form  and  substance  from  the  warrants 
authorized  by  the  statute.  Such  a  strict  limitation  on  legislative  power  is 
not  generally  asserted.     See,  on  this  point,  chap.  IV.  ante. 

1  Brady  v.  Mayor,  &c.  of  New  York,  30  N.  Y.  (6  Smith)  312,  1859.  It  is 
intimated  that  it  is  not  essential  to  the  defence  that  the  city  should  show  a 
fraudulent  collusion  between  the  bidder  and  the  officers  awarding  the  con- 
tract. Whether  the  city  is  liable  on  a  quantum  meruit  to  one  who  has  bona 
Me  performed  labor  under  a  void  contract  where  the  work  has  been  accepted 
and  used,  was  not  determined.  lb.  S.  C,  2  Bosw.  173;  7  Abb.  Pr.  R. 
234;  16  lb.  432.  As  further  illustrating  the  text,  see  People  v.  Flagg,  17 
N.  Y.  584;  Peterson  v.  Mayor, &c,  17  N.  Y.  457,  referring  to  but  expressing 
no  opinion  upon  Christopher  v.  Mayor,  &c,  13  Barb.  567;  Appleby  v.  Mayor, 
&c,  15  How.  Pr.  R.  428;  Harlem  Gas  Company®.  Mayor,  &c.  of  New  York, 
33  X.  Y.  309;  Macey  v.  Titcombe,  19  Ind.  153,  1862;  Boncesteel  v.  Mayor, 
&c,  22  N.  Y.  162;  Smith  v.  Mayor,  &c.,  21  How.  Pr.  1;  Nash  v.  St.  Paul,  8 
Minn.  172,  1863;  S.  C,  11  Minn.  174;  White  v.  New  Orleans,  15  La.  An. 
667.  State  v.  Barlow,  48  Mo.  17,  1871;  post,  sec.  669,  note;  Breevort  v. 
Detroit.  24  Mich.  322,  1872;  May  v.  Detroit,  2  Mich.  Cir.  C.  Rep.  235, 
1871.  There  can  be  no  recovery  against  a  municipal  corporation  for  extra 
work,  where  the  officers  who  requested  it  to  be  done  had  no  authority. 
Hague  v.  Philadelphia,  48  Pa.  St.  527;  Bonesteel  v.  Mayor,  &c.  of  New 
York.  22  X.  Y.  162. 


Ch.  XIV.]  CONTRACTS.  483 

§  389.  The  Supreme  Court  of  Michigan  has  affirmed, 
while  the  Supreme  Court  of  Wisconsin  and  of  other  states 
have  denied,  the  proposition  that  where  a  city  charter  pro- 
vides that  no  contracts  shall  be  made  by  the  city  except 
with  the  lowest  bidder,  after  advertisement  of  proposals,  it 
does  not  prohibit  the  corporation  from  contracting  to  lay 
Nicholson  pavement,  though  the  right  to  lay  it  is  patented 
and  owned  by  a  single  firm.  The  question  is  close,  but 
there  seems,  so  far,  to  be  a  tendency  in  the  courts  to  adopt 
the  Wisconsin  view. ' 

§  390.  Where  the  municipal  authorities  were  required 
by  law  to  advertise  for  sealed  proposals  for  making  local 
improvements,  and  award  the  work  to  the  lowest  responsible 
bidder,  to  publish  a  notice  of  the  award,  and  to  allow  the 
owners  of  the  major  part  of  the  frontage  to  take  the  contract 

Where  the  charter  requires  that  all  work  for  the  city  shall  be  let  to  the 
lowest  bidder,  after  a  prescribed  notice  of  the  time  and  place  of  letting  shall 
have  been  given,  and  requires  that  similar  notice  shall  be  given  where  work 
is  re-let,  an  assessment  upon  a  lot  for  work  done  is  void,  if  the  contract  was 
let  or  re-let  without  notice.  Mitchell  v.  Milwaukee,  18  Wis.  92,  1864- see 
also,  Wells  v.  Burnham,  20  Wis.  112;  Hasbrouck  v.  Milwaukee,  21  Wis. 
217,  1866.  Owner  may,  in  such  case,  restrain  the  sale.  lb.  The  contr<\ct 
must  be  the  same  that  was  advertised.     Nash  v.  St.  Paul,  11  Minn.  174. 

1  Dean  v.  Charlton,  23  Wis.  590,  1869;  Hobart  v.  Detroit,  17  Mich.  246, 
1868.  Dean  v.  Charlton,  supra,  was  approved  by  Sutherland,  J.,  in  Dolan  v. 
Mayor,  &c.  of  New  York,  4  Abb.  Pr.  (N.  S.)  397,  1868,  and  followed  by  the 
Supreme  Court  of  Louisiana  in  Burgess  v.  Jefferson,  21  La.  An.  143  1869 
in  which  it  appeared  that  the  contractors  with  the  city  had  the  exclusive 
right  to  lay  the  patented  pavement  in  the  state.  But  under  provisions  of 
law  relating  to  the  City  of  New  York  which  require  all  work  to  be  done, 
and  supplies  to  be  furnished,  to  be  by  contract,  where  the  expenditure  will 
exceed  $1,000,  and  which  direct  all  contracts  to  be  made  or  let.  after  adver- 
tisement, to  the  lowest  bidder,  the  City  Council  is  not,  in  the  opinion  of  the 
Court  of  Appeals,  prohibited  from  making  or  paving  a  street  in  the  manner, 
or  with  materials  which  do  not  admit  of  competitive  bids.  In  re  Dutrro 
(58th  street),  1873,  not  yet  reported.  Further,  as  to  rights  of  lowest  bid- 
ders, see  Attorney  General  v.  Detroit,  Michigan  Supreme  Court,  12  Am. 
Law  Reg.  (N.  S.)  149.  Post.  sees.  390,  699,  n.,  729,  791,  n.  Sequel  to  Dean 
v.  Charlton,  supra,  see  Mills  v.  Charleston,  29  Wis.  400,  and  Dean  r. 
Borchenius,  30  Wis.  236,  the  legislature  having  validated  the  assessment. 
Post,  sec.  652,  and  note.  See,  also,  in  re  Eager,  46  N.  Y.  100,  1871.  Lia- 
bility of  city  to  patentee  to  pay  him  "royalty."  Bigelow  v.  Louisville,  3 
Fish  Pat.  Cas.  602, 1869.     Post,  sec.  764,  n. 


484 


MUNICIPAL     CORPORATIONS. 


[Ch.  XIV. 


upon  the  same  terms  if  they  should  desire,  the  court  were 
of  opinion  that  the  city  authorities  had  no  power  to  do 
work  which  could  not  be  contracted  for  in  this  mode, 
or  which  the  abutters  could  not  themselves  perform,  and 
that  the  award  of  a  contract  for  a  patented  pavement  to  the 
assignee  of  the  patentee,  and  who  had  the  exclusive  right 
to  lay  the  same,  was  unauthorized,  and  the  contract  void. ' 

As  the  purpose  of  such  a  provision  in  the  charter  is 
to  secure,  through  competition,  the  most  advantageous 
terms,  something  is  necessarily  left  to  the  discretion,  to  be 
fairly  exercised,  of  course,  of  the  council,  in  the  adoption 
of  the  course  which  will  best  attain  the  end  ;  and  it  does  not 
contravene  this  restriction  to  call  for  bids  putting  down  vari- 
ous kinds  of  wood  and  stone  pavements,  some  patented  and 
some  not,  and  afterwards,  when  all  the  proposals  are  in, 
selecting  the  one  which  is  relatively  the  lowest  or  the  most 
satisfactory,  all  things  considered  ;  but  when  the  kind  is 
thus  selected,  the  lowest  responsible  bidder,  who  has  the 
lawful  power  to  perform  his  undertaking,  has  the  absolute 
legal  right  to  have  the  contract  awarded  to  him.4 

§  391.  In  an  action  on  a  contract  for  lighting  certain 
streets  in  New  York  City  with  gas,  it  appeared  that  the 
company  had,  by  law,  the  exclusive  right  to  furnish  that 
part  of  the  city  with  gas.  The  charter  of  the  city,  however, 
required  all  contracts  for  wants  and  supplies  beyond  a  cer- 
tain value,  which  the  contract  in  suit  exceeded,  to  be  let  to 
the  lowest  bidder,  and  the  contract  not  being  so  let,  it  was 
claimed  to  be  void.  It  was  held  that  since  the  company 
had  the  exclusive  right  to  furnish  the  gas  (which  prevented 
competition),  the  provision  of  the  charter  requiring  contracts 
to  be  let  to  the  lowest  bidder  (with  a  view  to  secure  compe- 


1  Nicholson  Pavement  Company  v.  Painter,  35  Cal.  699, 1868.  This  case 
was  decided  before  Dean  v.  Charlton,  supra,  and  the  opinion  of  Sanderson, 
J.,  in  its  general  scope,  sustains  the  view  of  the  Wisconsin  court;  and  ap- 
proving of  the  language  of  Field,  C.  J.,  in  Zottman's  Case,  20  Cal.  102, 
treats  "the  mode  as  constituting  the  measure  of  the  power."  Post,  chap. 
XIX. 

1  May,  Atty.-Genl.  v.  Detroit,  12  Am.  Law  Reg.  (N.  S.)  March,  1873 
p.  149.  Remedy  of  lowest  bidder  when  contract  ia  awarded  to  another 
lb.     Post,  chap.  XXII.  sec.  730a. 


Cn.  XIV.]  CONTRACTS.  485 

tition)  was  inapplicable,  and  the  contract  was  sustained 
under  the  general  corporate  power  of  the  city  to  contract 
for  the  lighting  of  its  streets.1 

§  392.  Although  notice  has  been  published  inviting 
proposals  to  do  public  work,  yet  the  contract  is  incomplete 
until  the  proposal  is  actually  accepted,  and  the  corporal i<>n 
inviting  the  proposal  is  not,  it  seems,  liable  to  damages  for 
refusing  to  accept  an  offer,  even  though  it  be  the  lowest 
regular  offer  made.  It  is  certainly  not  thus  liable  where 
the  notice  and  the  proposals,  with  respect  to  the  amount 
and  form  of  the  security,  do  not  comply  with  the  require- 
ments of  the  ordinances  of  the  city,  and  where  these  pro- 
vided that  contracts  should  not  be  executed  until  laid  before 
the  common  council.8 

§393.  Contracts  of  Suretyship. — A  municipal  corpora- 
tion cannot,  without  legislative  authority,  become  surety 
for  another  corporation  or  individual ;  cannot  guaranty  the 
bonds  or  obligations  of  another,  or  make  accommodation 
indorsements.  Such  an  authority  cannot  be  implied  or 
deduced  from  the  general  and  usual  powers  conferred  upon 
such  corporations.  Although  such  a  corporation  may  have 
power  directly  to  accomplish  a  certain  object,  and  itself  ex- 
pend its  revenues  or  money  therefor,  yet  this  does  not  give 
or  include  the  power  to  lend  its  credit  to  another  who  may 
be  empowered  to  effect  the  same  object.  Expending  money 
by  a  city  council,  as  agents  or  administrators  of  their  con- 
stituents, is  a  very  different  thing  from  binding  their  con- 

1  Harlem  Gas  Company  v.  Mayor,  &c,  33  IS".  Y.  309. 

s  Smith  v.  Mayor,  &c.  of  New  York,  10  N.  Y.  (6  Seld.)  504, 1853;  affirm- 
ing S.  C,  4  Sandf.  S.  C.  11.  221.  u  The  notice  inviting  proposals  to  do  the 
work,"  says  Willard,  J.,  delivering  the  opinion  of  the  Court  of  Appeals  1 10 
N.  Y.  504),  "did  not,  in  my  judgment,  bind  the  street  commissioner  of  the 
corporation  to  accept,  at  all  events,  the  lowest  bid,  even  though,  in  all  res- 
pects, formal.  Until  the  bid  is  accepted  by  some  act  on  the  part  of  the  cor- 
poration, no  obligatory  contract  was  created."  See,  also.  People  o,  Croton 
Aqueduct  Board,  26  Barb.  240;  State®.  Directors,  &c.,5  Ohio  St.  234,  1855; 
Altemus  v.  Mayor,  &c,  6  Duer,  446;  Argenti  v.  San  Francisco,  16  Cal.  2~>~> ; 
Wiggins  t.  Phila.,  2  Brews.  (Pa.)  444;  lb.  443. 

Further  as  to  lowest  bidder,  see  chapter  on  Mandamus,  post,  sees.  699,  n., 
791  n. 


m 


MUNICIPAL     CORPORATIONS. 


[Ch.  xrv 


stituents  by  a  contract  of  suretyship — "a  contract  which 
carries  with  it  a  lesion  by  its  very  nature.'" 

§  394.  Autliorized  Contracts. — Rights  and  Liabilities. 
— But  with  respect  to  authorized  contracts  a  municipal  cor- 
poration has  the  same  rights  and  remedies,  and  is  bound 
thereby,  and  may  be  sued  thereon  m  the  same  manner  as 
individuals.  Thus,  if  such  a  corporation,  duly  empowered, 
enters  into  a  partnership  relation  with  private  individuals 
with  respect  to  the  profits  to  be  derived  from  a  market 
house,  its  rights,  especially  as  regards  the  copartners  and 
the  financial  administration  of  the  partnership  property,  are 
not  different  from  those  of  an  ordinary  partner.2 

1  Louisiana  State  Bank  v.  Orleans  Navigation  Company,  3  La.  An.  294, 
1848.  In  this  case  the  municipal  corporation  was  sought  to  be  made  liable 
upon  its  guaranty  of  bonds  issued  by  the  navigation  company,  which  the 
mayor,  in  the  name  of  the  municipality,  was  authorized,  by  certain  resolu- 
tions of  the  council,  to  indorse.  It  was  held  that  the  council  transcended 
its  powers,  and  the  guaranty  did  not  impose  any  legal  obligation  upon  the 
municipality.  The  disability  of  such  corporations,  without  express  power, 
to  enter  into  contracts  of  suretyship,  is  shown  in  the  masterly  and  exhaust- 
ive opinion  delivered  by  Eustes,  C.  J. 

A  municipal  corporation  has  no  implied  power  to  lend  its  credit  or  make 
accommodation  paper  for  the  benefit  of  citizens,  to  enable  them  to  execute 
private  enterprises.  Clark  v.  Des  Moines,  19  Iowa,  199,  224,  1865;  1  Par- 
sons N.  &  B.  166;  Smead  v.  Railroad  Company,  11  Ind.  105. 

The  power  to  borrow  money  for  any  public  purpose  does  not  authorize  the 
loan  of  the  credit  of  the  city.  Chamberlain  v.  Burlington,  19  Iowa,  395; 
contra,  Rogers  v.  Burlington,  3  Wall.  654,  four  judges  dissenting.  And  see 
Meyer  v.  Muscatine,  1  Wall.  334.  The  author  cannot  but  think  that  power 
to  a  corporation  to  borrow  money  should  not  be  construed  to  give  the 
power  to  loan  its  credit,  but  only  to  borrow  money  for  legitimate  and 
proper  municipal  objects,  as  shown  by  the  charter  or  constituent  act  of  the 
corporation.  Sea  Payne  v.  Brecon,  3  Hurl.  &  Nor.  572.  Ante,  sec.  81 ;  Bate 
man  v.  Mid-Wales  Railway  Co.,  Law  Rep.  1  C.  P.  510. 

-  New  Orleans  v.  Guillotte,  12  La.  An.  818,  1857.  In  New  Orleans  v.  St. 
Louis  Church,  11  La.  An.  244,  1856,  it  was  contended  by  the  counsel  for  the 
city  that  even  if  certain  resolutions  in  favor  of  the  defendants  allowing 
them  to  establish  a  cemetery  within  the  city  amounted  to  a  contract,  and 
though  their  repeal  be  not  justified  by  the  facts,  and  a  violation  of  the  con- 
tract by  the  city,  yet  that  the  latter  has  the  power  to  violate  its  contracts, 
and  the  defendants  have  no  redress  except  in  an  action  for  damages.  But 
this  doctrine  was  rejected  by  the  court,  which  declared  it  to  be  as  "un- 
sound as  it  is  novel,"  since  a  liability  for  damages  is  "the  very  opposite  of 
a  recognition  of  a  right  to  violate  the  contract."     Per  Buchanan,  J. 


Ch.  XIV.]  CONTRACTS.  487 

§  395.  So  where  a  municipal  corporation,  acting  within 
the  scope  of  its  powers,  in  order  to  secure  the  erection  of 
gas  works,  passed  an  ordinance  whereby  the  gas  works  and 
their  income  were  placed  in  the  hands  of  trustees,  for  the 
benefit  of  those  who  loaned  money  to  execute  the  under- 
taking, stick  ordinance  is  a  contract,  and  cannot  be  vio- 
lated by  the  city,  although  it  may  deem  it  for  the  interest  of 
its  citizens  to  do  so  ;  nor  is  it  in  the  power  of  the  legislature 
to  authorizeits  violation.1 

§  396.  So  where  the  mayor  and  council  have,  by  the 
charter,  power  to  make,  in  their  corporate  capacity,  all 
such  contracts  as  they  may  deem  necessary  for  the  welfare 
of  the  corporation,  they  may  contract  to  sell  stock  owned  by 
the  city  in  a  private  corporation,  to  enable  the  city  to  pay 
its  debts  ;  and  the  discretionary  power  with  which  the 
mayor  and  council  are  invested  cannot,  when  oona  fide 
exercised,  be  controlled  by  a  court  of  equity,  at  the  in- 
stance of  property  owners  and  tax-payers.8 

§  397.  Power  to  a  city  corporation  to  pave  streets  at  the 
expense  of  the  owners  and  recover  the  amount  from  them  if 
they  fail  themselves  to  pave  when  required  by  ordinance, 
gives  the  corporation  the  power  to  purchase  paving  ma- 
terials and  incur  a  debt  for  that  purpose  ;  and  in  a  suit  by 
the  vendor  of  such  materials  against  the  corporation,  it  is 
no  defence  that  the  council  had  not  passed  an  ordinance  be- 
fore they  purchased  the  materials,  requiring  the  owners  to 
pave :  this  is  a  matter  to  which  a  creditor  is  not  bound  to 
look.  The  question  would  be  different  if  the  city  had 
sought  to  make  the  lot  owner  liable  for  the  cost  of  paving  ; 
in  such  case,  it  must  show  a  strict  compliance  with  the  re- 
quirements of  its  charter.3 

§  398.  Settlement  of  Disputed  Claims,  &c— Growing 
out  of  its  authority  to  create  debts  and  to  incur  liabilities,  a 

1  Western  Savings  Fund  Society  v.  Philadelphia,  31  Pa.  St.  175,  1854; 
Same  v.  Same,  II.  185,  1858;  Ante,  chap.  IV.  sec.  41. 

2  Semines  v.  Columbus,  19  Ga.  471,  1856.  Ante,  sec.  58;  post,  chapter 
on  Corporate  Property,  sec.  445.     Post,  chap.  XX. 

3  Bigelow  v.  Perth  Amboy,  1  Dutch.  (N.  J.)  297, 1855.    Post,  chap.  XIX 


488 


MUNICIPAL     CORPORATIONS. 


[Ch.  xrv 


municipal  corporation  has  power  to  settle  disputed  claims 
against  it,  and  an  agreement  to  pay  these  is  not  void  for 
want  of  consideration.1  If  it  has  obtained  a  contract  which, 
by  mistake  or  a  change  of  circumstances,  it  deems  to 
operate  oppressively  upon  the  other  party,  an  agreement  to 
make  an  additional  compensation,  or  to  modify  or  annul 
it,  is  not  invalid  for  want  of  consideration.2  A  town  may 
make  a  contract  with  a  creditor  whereby  the  latter  agrees 
to  discount  or  throw  off  a  portion  of  his  debt,  and  such 
an  agreement,  if  founded  on  a  sufficient  consideration,  will 
be  enforced.3 

§  399.     Contracts  with  Attorneys.—  Resulting  also  from 


•  Augusta  v.  Leadbetter,  16  Maine,  45, 1839;  Beau  v.  Jay,  23  Maine,  117r 
121,  1843;  Peoples.  Supervisors,  27  Cal.  655;  People  v.  Coon,  25  Cal.  648. 
It  may  annex  conditions  to  a  proposal  of  settlement,  and  is  not  liable  unless 
the  conditions  are  met.  Merrill  v.  Dixfield,  30  Maine,  157,  1849.  A  munici- 
pality may,  without  special  grant,  issue  new  bonds  in  the  place  of  old  bonds 
which  had  been  issued  according  to  law.  Rogan  v.  Watertown,  30  Wis. 
259,  1879.     Infra,  sec.  412,  n. 

J  Bean  v.  Jay,  23  Maine,  117,  121 ;  Meech  v.  Buffalo,  29  N.  Y.  198,  1864. 
Further,  as  to1  consideration  :  Baileyville  v.  Lowell,  20  Maine,  178,  1841 
Nelson  v.  Milford,  7  Pick.  18,  1828— valuable  opinion  of  Parker,  C.  J.  See 
People  v.  Stout,  23  Barb.  349.  Ante,  chap.  IV.  sec.  44.  Tbe  power  to  sue 
and  be  sued  gives  to  a  corporation  the  right  to  settle  or  compromise  claims. 
Where  a  city  has  a  judgment,  from  which  an  appeal  is  about  to  be  taken, 
the  council  may,  if  done  in  good  faith,  cancel  the  judgment  on  the  payment 
of  costs,  and  such  an  agreement,  when  executed,  is  binding  upon  the  cor- 
poration. Petersburg  v.  Mappin,  14  111.  193,  1852;  Supervisors  v.  Bowen, 
4  Lansing,  24,  1871. 

Power  to  submit  to  arbitration.  Dix  v.  Dummerston,  19  Vt.  263 ;  Gris- 
wold  v.  Stonington,  5  Conn.  367;  Canal  Company  v.  Swann,  5  How.  (U.  S.) 
83.  Power  exists  unless  the  corporation  be  disabled.  In  re  Corporation,  etc., 
6  Upper  Can.  Law  J.  207;  In  re  Corporation,  &c,  19  Upper  Can.  Q.  B.  450. 

s  Baileyville  v.  Lowell.  20  Maine,  178,  1841.  In  this  case,  the  town 
against  which  the  creditor  had  an  execution  had  the  option,  and  was 
authorized  to  raise  the  money  by  loan  or  by  assessment;  and  if  in  the  latter 
mode,  either  at  once  or  by  instalments.  If  not  raised  and  paid,  the  creditor 
was  authorized  to  cause  the  property  of  the  inhabitants  to  be  distrained 
upon  his  writ.  It  was  held,  under  these  circumstances,  that  an  agreement 
by  the  creditor,  which  was  accepted  and  complied  with  by  the  town,  that 
if  the  town  would  at  once  assess  the  amount  required,  and  collect  the  same, 
he  would  abate  a  portion  of  his  debt,  was  founded  upon  a  sufficient  con- 
sideration, and  was  binding  upon  him. 


Ch.  XIV. j  CONTRACTS.  489 

the  power  to  make  contracts,  to  own  property,  and  to  incur 
liabilities,  is  the  authority  in  a  municipal  corporation,  in  the 
absence  of  express  or  implied  restriction,  to  employ  an 
attorney, x  to  conduct  or  defend  suits  in  which  the  corpora- 
tion is  interested  in  its  corporate  capacity,  and  the  corpora- 
tion is  bound  to  pay  for  services  rendered  by  him,  on  due 
employment,  without  an  express  vote  to  that  effect.*  If  a 
corporation  attorney,  after  his  term  of  office  has  expired, 
continues  in  the  management  of  suits  in  which  the  corpora- 
tion is  interested,  without  objection  from,  and  with  the 
knowledge  of,  the  corporation,  and  of  his  successor,  he 
may,  it  has  been  held,  recover  for  such  services.3 

1  Smith  v.  Sacramento,  13  Cal.  531.  May  employ,  unless  specially  re- 
stricted, an  attorney  in  addition  to  the  city  attorney.  lb.  See  Horn  blower 
v.  Dunden,  35  Cal.  644.  Compare  Clough  v.  Hart,  decided  l>y  the  Supreme 
Court  of  Kansas,  reported  in  11  Am.  Law  Reg.  (N.  S.)  95.  This  case  holds 
that  there  is  prima  facie,  if  not  absolutely,  an  implied  restriction  upon  city 
and  county  corjiorations  to  employ  other  attorneys  to  perform  the  precise 
duties,  as  prescribed  by  law,  of  the  city  and  county  attorneys  elected  by  the 
people  or  provided  for  by  incorporating  statutes.  A  municipal  corporation 
which  has  employed  an  attorney  to  file  a  bill  seeking  to  destroy,  by  suit, 
the  existence  of  the  corporation  itself,  cannot  apply  the  corporate  funds  in 
payment  for  such  services.  Daniel  v.  Mayor,  &c,  11  Humph.  (Term.)  582,  1851. 

Unless  there  is  some  special  restriction  the  corporation  may  incur  lia- 
bility to  compensate  an  attorney  employed  by  it  to  conduct  or  defend  suits 
which  relate  to  the  due  performance  of  the  duties  or  trusts  with  which,  in 
its  corporate  capacity,  it  is  charged  by  law.  Attorney-General  v.  Mayor, 
&c.  of  Norwich,  2  Myl.  &  Cr.  406;  Lewis  v.  Mayor,  &c.  of  Rochester,  9 
Com.  B.  (N.  S.)  401,  1860.  Ante,  sec.  98.  The  Supreme  Court  of  Wiscon- 
sin hold  that  no  action  will  lie  against  a  city  having  "  the  general  powers  of 
municipal  corporations  at  common  law  "  to  recover  compensation  for  ser- 
vices of  counsel  to  aid  in  criminal  prosecutions  against  persons  who  had 
lately  been  officers  of  the  city  for  offenses  committed  under  color  of  their 
official  duties,  resulting  in  pecuniary  injury  to  the  city.  Butler  r.  Milwau- 
kee, 15  "Wis.  493.  Compare  ante,  sec.  91,  and  cases  there  cited,  as  to  power 
to  offer  rewards  for  offenders.     Buttrick  v.  Lowell,  1  Allen  (Mass.)  172. 

8  Langdon  v.  Castleton,  30  Vt.  285,  1858. 

'  lb.  See  Harrington  v.  School  District,  30  Vt.  155;  supra,  sec.  383,  as 
to  implied  contracts.  Compare  Clough  v.  Hart,  11  Am.  Law  Reg.  (N.  S.) 
95.  Compensation  of  city  attorney.  See  Carroll  v.  St.  Louis,  12  Mo.  HI; 
Orton  v.  State,  12  Wis.  509;  also,  chapter  on  Corporate  Officers,  ante.  Lia- 
bility for  attorney's  fee  under  charter  or  special  statutes,  sec  Brad;  v.  Super- 
visors, 2  Sandf.  S.  C.  R.  460,  affirmed  10  N.  Y.  (6  Seld.)  260,  L851,  for 
reasons  given  by  Oakley,  C.  J.,  in  2  Sandf.  160;  Halstead  r.  Mayor,  &c.  of 
New  York,  3  Comst.  430;  State  v.  New  Orleans,  20  La.  An.  172;  Bright  v. 


490  MUNICIPAL     CORPORATIONS.  [Ch.  XXV. 

§  400.  Contracts  for  Local  Improvements. — A  munici- 
pal corporation  contracted  with  a  paver  to  do  certain  work 
at  a  fixed  price,  of  which  it  was  to  pay  one-third  and  the 
owners  two-thirds.  It  was  judicially  dntermined  that  the 
proprietors  were,  in  law,  liable  to  pay  only  one-third,  and 
it  was  held,  in  an  action  by  the  paver  against  the  corpora- 
tion, that  it  was  a  warrantor  for  the  remaining  one-third, 
and  it  was  held  liable  accordingly.1  But  where  the  charter 
or  constituent  act,  in  reference  to  improving  streets,  provides 
that  the  city  shall  be  liable  to  the  contractor  for  so  much 
only  of  the  improvement  as  is  occupied  by  streets  and 
alleys  crossing  the  same,  and  that  the  owners  of  adjacent 
lots  shall  be  liable  for  the  rest,  the  city  is  not  liable  for  the 
deficiency,  in  case  the  adjacent  property  does  not  sell  for 
enough  to  pay  the  assessment,  and  though  the  owner  be  a 
non-resident.3 

§  401.     A  city  charter  required  the  consent  of  a  majority 

Hewes,  19  La.  An.  666 ;  Parker  v.  Williamsburg,  13  How.  Pr.  250 ;  Clough 
o.  Hart,  supra,  and  cases  cited  by  Valentine,  J. 

1  Tounier  v.  Municipality,  5  La.  An.  298.  See,  also,  Cronan  v.  Same,  lb. 
537,  where,  by  the  construction  of  the  contract,  the  city  was  held  liable  for 
the  whole  expense,  the  proprietors  having  refused  to  make  payment.  A 
contractor  failing,  for  want  of  power  in  a  city,  to  be  able  to  get  his  pay  from 
special  assessments,  the  city  was  held  liable  to  him,  it  being  regarded  as 
guaranteeing  that  it  possessed  the  specific  powers  relied  on  by  the  con- 
tractor for  his  compensation.  Maher  v.  Chicago,  38  HI.  266,  1865.  But  see 
Chicago  v.  People,  48  111.  416,  where  the  first  case  is  explained  and  distin- 
guished. See,  also,  Reilly  v.  Philadelphia,  60  Pa.  St.  467;  Sleeper  v.  Bullen, 
6  Kansas,  300,  1870;  Chicago  v.  People,  56  III.  327;  Lowden  v.  Cincinnati, 
2  Disney  (O.)  203.  Right  of  contractor  to  sue  the  corporation  where,  in 
consequence  of  its  neglect,  it  would  be  nugatory  to  proceed  against  the 
owners  or  the  property.  See  Michel  v.  Police  Jury,  9  La.  An.  67;  Newcomb 
v.  Same,  4  lb.  233;  Michel  v.  Same,  3  lb.  123;  Leavenworth  v.  Mills,  6 
Kansas,  288,  1870.  Compare  Reock  v.  Newark,  33  N.  J.  Law,  129.  Fur- 
ther, as  to  local  improvements,  see  chap.  XIX. ;  post,  sec.  648 ;  supra,  sees. 
383,  389. 

*  New  Albany  v.  Sweeney  (construing  general  Towns  and  Cities  Act),  13 
Ind.  245,  1859;  Lucas  v.  San  Francisco,  7  Cal.  463;  Lovell  v.  St.  Paul,  10 
Minn.  290.  Contracts  with  municipal  corporations  are  construed  with  refer- 
ence to  the  chartered  or  corporate  powers  of  the  city.  13  Ind.  245,  supra. 
If  the  city  corporation  agrees  with  the  contractor  to  collect  the  assessments  from 
the  abutting  owners,  a  failure  to  do  so  will  render  it  liable.  Morgan  v. 
Dubuque,  28  Iowa,  575,  1870.     See  Beard  v.  Brooklyn,  31  Barb.  142. 


Ch.  XIV.]  CONTRACTS.  491 

of  property  owners  to  make  certain  improvements,  which, 
when  made,  were  chargeable  upon  the  adjacent  property. 
An  ordinance  provided  that  contractors  doing  such  work 
should  look  to  the  adjacent  property,  and  not  to  the  city, 
for  their  pay.  Under  these  circumstances,  the  city  entered 
into  a  contract  with  the  plaintiff  to  grade  a  certain  street, 
the  plaintitf  agreeing  that  he  would  receive  his  pay  from  the 
adjoining  property.  The  plaintiff  performed  the  work,  and, 
inasmuch  as  the  adjacent  owners  had  never  given  their  con- 
sent to  the  making  of  the  improvement,  he  sued  the  city  on 
the  contract,  to  recover  for  the  work  done  ;  and  it  was  held 
that  the  action  could  not  be  maintained.1 

1  Leavenworth©.  Rankin,  2  Kansas,  357,  1864;  Swift  v.  Williamsburg, 
24  Barb.  427;  Goodrich  v.  Detroit,  12  Mich.  279;  Johnson  v.  Common  Coun- 
cil, 16  Ind.  227;  New  Albany  v.  Sweeney,  13  Ind.  245. 

Where  the  contractor  has  agreed  to  look  for  payment  to  the  lot  benefited, 
or  to  the  owner,  he  cannot  hold  the  city,  unless  it  may  be  in  cases  where  the 
whole  proceeding  is  void,  or  the  city  neglects  its  duty.  Kearney  v.  Coving- 
ton. 1  Met.  (Ky.)  339;  Smith  v.  Milwaukee,  18  Wis.  63,  1864;  Finney  v. 
Oshkosh,  lb.  309 ;  Chicago  v.  People,  48  111.  416 ;  Ruppert  v.  Baltimore,  23 
Md.  184;  Louisville  v.  Henderson,  5  Bush  (Ky.)  515,  1869. 

A  city  advertised  for  proposals  to  do  certain  public  work,  and  the  plain- 
tiff made  proposals,  which  were  accepted,  without  qualification,  by  an  entry 
on  city  records;  and  it  was  decided  that  the  statement  in  the  published 
notice,  "  the  expense  of  the  work  to  be  assessed,"  &c,  was  part  of  the  con- 
tract, no  other  provision  for  payment  having  been  made,  and  that  the 
plaintiff  could  not  maintain  an  action  against  the  city  until  after  the  assess- 
ment and  collection  of  his  compensation,  or  until  it  or  its  officers  failed  to 
proceed  with  reasonable  diligence,  after  the  expense  of  the  work  was  ascer- 
tained, to  make  and  collect  an  assessment,  and  to  pay  over  money  thus 
collected.     Hunt  v.  Utica,  18  N.  Y.  442,  1858. 

Extent  of  recovery  by  contractor  against  abutter  where  the  woik  is  done 
in  a  manner  inferior  to  that  stipulated  for  in  the  contract.  Creamer  v. 
Bates,  49  Mo.  523,  1872. 

Further,  as  to  the  rights  and  remedies  of  the  contractor;  of  the  property 
owner,  and  the  liabilities  of  the  municipal  corporation.  Smith  v.  Milwau- 
kee, 18  Wis.  63;  Foote  v.  Same,  lb.  270;  Bond  v.  Newark,  19  N.  J.  Eq. 
376;  Fletcher  v.  Oshkosh,  18  Wis.  228,  S432  ;  Palmer  v.  Stump,  29  Ind.  329; 
McSpcdon  v.  New  York,  7  Bosw.  601;  Reilly  v.  Philadelphia,  60  Pa.  St. 
467;  Whalen  v.  La  Crosse,  16  Wis.  271;  Flournoy  v.  Jeffersonville,  17  Ind. 
169;  Creightonv.  Toledo,  18  Ohio  St.  447;  Goodrich  v.  Detroit,  12  Mich. 
279;  Buffalo  v.  Hallo  way,  7  N.  Y.  (3  Seld.)  493;  Storrs  v.  Utica,  17  N.  Y. 
104;  Leavenworth  v.  Mills,  6  Kansas,  288,  1870;  Sleepers  Bullen,  6  Kan- 
sas, 300;  Lansing  v.  Van  Gorder,  24  Mich.  456,  1872.  Post,  chapter  on 
Taxation  and  Local  Improvements.  Supra,  sec.  3S4.  Infra,  sec.  048. 
Hendrick  v.  West  Springfield,  107  Mass.  541. 


492 


MUNICIPAL     CORPORATIONS. 


[Ch.  XI Y 


§  402.  It  has  been  asserted  that  where  the  expense  of 
making  a  local  improvement  is  not  to  be  raised  by  a  general 
tax,  but  solely  upon  the  property  benefited,  that  a  failure 
of  the  corporation,  though  it  is  only  the  agent  of  the  owners 
to  be  assessed,  to  discharge  its  duty,  by  making  the  neces- 
sary assessment,  or  its  unreasonable  delay  in  collecting  and 
paying  over  the  money,  gives  the  contractor  a  right  to  re- 
cover his  compensation  in  an  action  against  the  corporation.1 
The  right  to  a  general  judgment  should,  in  our  opinion,  be 
limited,  in  any  event,  to  cases  where  the  corporation  can 
afterwards  reimburse  itself  by  an  assessment.  For,  why 
should  all  be  taxed  for  the  failure  of  the  council  to  do  its 
duty  in  a  case  where  the  contractor  has  a  plain  remedy,  by 
mandamus,  to  compel  the  council  to  make  the  necessary 
assessment  and  proceed  in  the  collection  thereof  with  the 
requisite  diligence? 

§  403.  Same. — Corporate  Control  by  Stipulation. — An 
agreement  by  a  contractor  to  execute  a  public  improvement 
under  the  general  direction  and  supervision  of  a  committee 
of  a  city,  makes  such  committee — acting  reasonably,  and 
honestly,  not  arbitrarily  and  capriciously — exclusively  the 
judge,  not  only  as  to  materials  and  manner,  but  also  as  to 
the  time  of  doing  the  work.2  But  where  a  written  contract 
has  been  entered  into  between  a  municipal  corporation  and 
a  contractor,  a  general  provision  of  an  ordinance  that  the 
work  shall  be  done  under  the  directions  of  certain  officers, 
confers  no  authority  upon  them   essentially  to  change  or 

1  Beard  v.  Brooklyn,  31  Barb.  142,  1860.  See  Goodrich  v.  Detroit,  12 
Mich.  279,  1864;  dimming  v.  Mayor,  &c.  of  Brooklyn,  11  Paige,  596,  1845; 
Baker  v.  Utica,  19  N.  Y.  (5  Smith)  326,  1859;  Green  v.  Mayor,  &c.  of  New 
York,  5  Abb.  Pr.  Rep.  503.  See,  generally,  as  to  assessments  for  public 
works:  Doughty  v.  Hope,  3  Denio,  249;  Manice  v.  Mayor,  8  N.  Y.  120; 
People  ».  Mayor,  &c.  of  New  York,  5  Barb.  43 ;  8  Barb.  95 ;  23  Barb.  390 ; 
In  principle  sustaining  the  view  suggested  in  the  text :  Reock  v.  Newark, 
33  N.  J.  Law,  129.  Post,  sec.  778,  note.  And  see  opinion  of  Field,  C.  J., 
in  Argenti  v.  San  Francisco,  16  Cal.  255,  282,  1860.  Post,  chap.  XX.  on 
Mandamus. 

-  Chapman  v.  Lowell,  4  Cush.  378,  1849,  relating  to  drains  in  the  streets 
of  the  city.  As  to  power  of  chancery  to  correct  mistake  of  the  engineer  or 
other  person  whose  decision  both  parties  to  the  contract  have  agreed  to 
abide  by,  see  Railroad  Company  v.  Veeder,  17  Ohio,  385 


Ch.  XIV.]  CONTRACTS.  493 

modify  the  provisions  of  the  contract.1  If,  in  a  contract  for 
a  public  work,  the  corporation  employer  reserves  the  right 
to  make  alterations  in  the  form,  dimensions,  or  materials  of 
the  work,  the  contractor  is  bound  by  any  such  alterations 
made  in  good  faith;  but  such  a  clause  does  not  authorize 
the  employer  to  annul  the  agreement,  or  to  stop  the  work 
in  an  unfinished  state.2 

§  404.  Evidences  of  Indebtedness— Negotiable  Bonds. 
— We  have  elsewhere  discussed  the  power  of  the  legislature 
to  authorize  the  issue  of  municipal  bonds  in  aid  of  railway 
and  other  like  enterprises,3  and  have  also  considered  the 
express  and  implied  power  of  municipal  corporations  to 
borrow  money  and  issue  obligations  therefor.4  It  appropri- 
ately belongs  to  this  place,  however,  to  notice  more  at 
length  the  different  kinds  of  corporate  evidences  of  debt, 
and  the  rights  and  remedies  of  the  holders  thereof,  and  to 
this  general  subject  will  the  remainder  of  the  present  chapter 
be  devoted. 

§  405.  Bonds  issued  by  municipal  corporations  on 
time,  negotiable  in  form,  and  for  sale  in  the  market,  under 
express  authority  from  the  legislature,  are  negotiable,  with 
all  the  qualities  and  incidents  of  negotiability.  Such  securi- 
ties are  made  to  raise  money  by  their  sale,  and  this  object 

1  Bonesteel  v.  Mayor,  &c.  of  New  York,  22  N.  Y.  162,  1860.  But  the 
authority  of  the  corporation  may  be  implied  from  its  haviDg  by  its  own  act 
rendered  extra  materials  necessary  to  conform  the  work  to  the  conditions 
of  the  contract.     Messenger  v.  Buffalo,  21  N.  Y.  196,  1860. 

As  to  reserved  right  to  discontinue  work  and  annul  contract.  Bietry  0. 
New  Orleans,  24  La.  An.  21,  1872. 

8  Clark  v.  Mayor,  &c.  of  New  York,  4  Comst.  338,  1850.  Remedy  of  con- 
tractor, and  measure  of  damages  in  such  a  case,  considered.  lb.  It  is 
held,  in  Vermont,  that  a  person  who  has  contracted  with  the  proper  town 
officers  to  build  a  road,  cannot  proceed  with  his  contract  after  notice  of  an 
appeal  and  recover  of  a  town  therefor.  This  decision  is  based  upon  a  con- 
struction of  the  statute  of  that  state  by  which  the  appeal  is  intended  to 
stay  or  suspend  all  proceedings  toward  building  the  road,  and  the  con- 
tractor was  bound  t'o  take  his  contract,  subject  to  the  contingency  of  the 
appeal  allowed  by  law.     Taft  v.  Pittsford,  28  Vt.  (Wms.)  286,  1856. 

'  Ante,  sec.  104,  etseq. 

*  Ante,  sec.  81,  et  seq.  ,  supra,  sec.  392,  note. 


494  MUNICIPAL    CORPORATIONS.  [Ch.  XTV. 

would  be  defeated  if  they  were  subject  to  equities  (where 
the  power  to  issue  exists)  in  the  hands  of  bona  fide  holders.' 

§  406.  Ordinary  Corporation  Orders  or  Warrants. — 
But  ordinary  city,  county,  and  toion  orders  or  warrants 
are  in  some  respects,  different  from  bonds  of  the  character 
just  mentioned,  and,  in  the  author's  judgment,  the  better 
opinion  is,  that  there  is  no  implied  power  in  the  officers  of 
a  town,  county,  or  city  corporation  to  issue  warrants  or 
orders  which  shall  be  free  from  equities  in  the  hands  of 

1  Mercer  County  v.  Hacket,  1  Wall.  83,  1863  (denying  Diamond  v.  Lau- 
rence County,  37  Pa.  St.  368) ;  Meyer  v.  Muscatine,  1  Wall.  384 ;  Gelpcke  v. 
Dubuque,  lb.  175;  Moran  v.  Miami  County,  2  Black,  733,  1862;  Clapp  v. 
Cedar  County,  5  Iowa,  15;  Morris  Canal  Company  v.  Fisher,  1  Stockt.  Ch. 
G67,  1855  ;  Craig  v.  Vicksburg,  31  Miss.  216 ;  Jackson  v.  Railroad  Company, 
2  Am.  Law  Reg.  (N.  S.)  585;  S.  C,  lb.  748,  and  note  of  Judge  RedfieU; 
Chapin  v.  Railroad  Company,  8  Cray,  575 ;  Lynde  v.  Winnebago  County 
(Iowa  Court  house  bonds),  TJ.  S.  Sup.  Ct.  Dec.  Term,  1872;  Clark  v.  Janes- 
ville,  10  Wis.  136;  Gould  v.  Sterling,  23  N.  Y.  464;  S.  C,  1  Am.  Law  Reg. 
(N.  S.)  290,  and  note;  Clark  v.  Des  Moines,  199.  213,  and  cases  cited. 
White  v.  Railroad  Company,  21  How.  575;  Bank  v.  Railroad  Company,  3 
Kern.  599;  S.  C,  4Duer,  480;  Aurora  v.  West,  22  Ind.  88;  Commissioners 
v.  Bright,  18  Ind.  93;  Barrett  v.  Schuyler  County,  44  Mo.  197;  De  Voss  e. 
Richmond,  18  Gratt.  338;  7  Am.  Law  Reg.  (N.  S.)  589;  State  v.  Madison, 
7  Wis.  688;  Clark  v.  Janesville,  10  Wis.  136,  1859;  Maddox  v.  Graham,  2 
Met.  (By.)  56,  1859. 

Coupons  attached  to  such  bonds  are  negotiable,  and  the  holder  may  sue 
[:.      thereon  in  his  own  name  without  being  interested  in  or  producing  the  bonds 

~**>~<Af~*'  }t0  which  they  were  originally  attached.     Thompson  v.  Lee  County,  3  Wall. 

L  jl  Sa.fi-. 327,  1865;  Murray  v.  Lardner,  2  Wall.  110,  1864;  Knox  County  v.  Aspin- 
v_*  wall,  21  How.  539,  1858;  Johnson  v.  Stark  County,  24  111.  75;  City  v. 
Lamson,  9  Wall.  478,  1869 ;  Railroad  Company  v.  Otoe  County,  1  Dillon 
C.  C.  R.  338.  An  action  on  a  coupon  is  not  barred  in  less  time  than  the 
bond  to  which  it  was  originally  attached.  City  v.  Lamson,  supra  ;  Lexing- 
ton v.  Butler,  14  Wall.  282,  1871.  How  declared  on.  Ring  v.  County,  6 
Iowa,  265;  Railroad  Company  v.  Otoe  County,  supra  ;  Wiley  v.  Board,  &c, 
11  Minn.  371.  The  better  practice  in  the  author's  judgment  is  to  set  out  in 
the  declaration,  the  bond  to  which  the  coupon  in  suit  was  attached,  or  its 
legal  effect  and  recitals.  Effect  of  judgment  for  interest  as  an  estoppel  in  a 
subsequent  suit  for  interest  or  principal.  Bank  v.  Navigation  Company,  3  La. 
An.  294;  Beloit  v.  Morgan,  7  Wall.  619.     As  to  interest,  infra,  sec.  414. 

Municipal  corporations  may  plead  the  statute  of  limitations  in  actions 
against  them  on  their  bonds  payable  at  a  fixed  time.  De  Cordova  v.  Galves- 
ton, 4  Texas,  470,  1849;  see  Underhill  v.  Trustees,  17  Col.  172;  Baker  v. 
Johnson  Co.,  33  Iowa,  151. 


fc.  h 


Oh.  XIV.]  CONTRACTS.  495 

holders  ;  that  the  existence  of  such  a  power  is  not  necessary 
as  an  incident  to  those  ordinarily  granted  or  to  carry  out 
ths  purposes  of  the  corporation,  and  would  be  attended 
with  abuse  and  fraught  with  danger.  Ordinary  warrants  or 
orders,  negotiable  in  form,  may  be  made  by  the  proper 
*  officers,  and  in  many  of  the  States  such  instruments  may  be 
transferred  by  delivery  or  indorsement,  and  the  holder  sue 
thereon  in  his  own  name,  yet  they  are  not  commercial  or 
negotiable  paper  in  the  hands  of  holders  so  as  to  exeluda 
inquiry  into  the  legality  of  their  issue,  or  preclude  defences 
thereto.1  Ordinary  warrants  drawn  by  one  officer  on 
another  officer  of  the  same  corporation  are  not  bills  of 
exchange,  as  such  bills  involve  the  idea  of  two  parties;  but 
are  orders  by  the  corporation  on  itself — mere  directions  to 
the  treasurer  to  pay  the  amount  to  the  bearer.3 

1  Emery  v.  Mariaville,  56  Maine,  315;  Clark  v.  Des  Moines,  19  Iowa, 
199,  211-214,  1865,  and  cases  cited;  Clark  v.  Polk  County,  lb.  248;  People 
v.  County,  11  Cal.  170,  1858;  Sturtevant  v.  Liberty,  46  Maine,  457;  Smith 
©.Cheshire,  13  Gray,  318,  1859;  Andover  v.  Grafton,  7  N.  H.  298,  1834; 
compare,  however,  Bank  v.  Fannington,  41  N.  H.  32;  Dalrymple  0.  Whitting- 
ham,  26  Vt.  345;  Inhabitants  v.  Weir,  9  Ind.  224,  1857;  School  District  v. 
Thompson,  5  Minn.  280,  1861;  S.  P.  Goodnow  v.  Commissioners,  11  lb. 
31,  1865;  Hyde  v.  Franklin,  27  Vt.  185,  1855;  approved,  Taft  v.  Pittstbid, 
28  lb.  286 ;  Halstead  v.  Mayor,  3  Comst.  430;  S.  C,  5  Barb.  218;  The  Floyd 
Acceptances,  7  Wall.  666,  and  reasoning  of  Mr.  Justice  Milk  r ;  People  v. 
Gray,  23  Cal.  125 ;  1  b.  447 ;  Hubbard  v.  Lyndon,  28  Wis.  674,  1871.  Warrants, 
duly  signed  and  sealed,  are  prima  facie  valid,  but  open  to  defences.  Com- 
missioners v.  Keller,  6  Kansas,  510;  Commissioners  v.  Day,  19  Ind.  540, 
1862.     Infra,  sec.  411. 

Transferee  or  holder  may  sue  in  his  own  name.  Emery  v.  Mariaville,  56 
Maine,  315;  Crawford  County  v.  Wilson,  2  Eng.  (Ark.)  214;  Clark  v.  Des 
Moines,  19  Iowa,  199;  Campbell  v.  Polk  County,  3  Iowa,  467  ;  Clark  v.  Polk 
County,  19  Iowa,  248.  Otherwise  in  Massachusetts:  Smith  v.  Cheshire,  13 
Gray,  318,  treating  a  town  order,  payable  to  bearer,  as  a  mere  chose  in 
action  which  could  not  be  enforced  in  the  name  of  an  assignee.  S.  P. 
O'Donnell  v.  City,  7  Phil.  (Pa.)  234.  In  many  of  the  states,  "the  real 
party  in  interest"  may  sue  in  his  own  name.  In  Vermont,  as  to  right  of 
holder  of  town  and  county  orders  to  sue  in  uis  own  name,  sec  Dalrymple  v. 
Whittingham,  26  Vt.  345;  compare,  Taft  v.  Pittsford,  28  Vt.  286,  389; 
Hyde  v.  Franklin,  27  Vt.  .85.  Right  of  indorsee  to  sue  or  enforce  />;/  manda- 
mus in  his  own  name.  Kelly  v.  Mayor,  &c,  4  Hill,  26:!;  Clark  V.  School 
District,  3  Rh.  Is.  199;  Moss  ».  Oakley,  2  Hill  (N.  Y.)  265;  Commissioners 
0.  Day,  19  Ind.  450;  Dively  v.  Cedar  Falls,  21  Iowa,  505 ;  Justices©.  Orr, 
12  Geo.  137.     Post,  chap.  XX.  sec.  685. 

2  Miller  v.  Thompson,  8  Man.  &  Gr.  576 ;  Fairchild  t\  Railroad  Company, 


496  MUNICIPAL    CORPORATIONS.  [Ch.  XIV. 

§  407.  Banking  and  trading  corporations  have  im- 
plied or  incidental  power  to  make  negotiable  paper  /  and 
the  same  rule  has,  in  some  of  the  cases,  been  applied  to 
municipal  corporations.  The  ordinary  warrants  of  such 
corporations,  it  is  clear,  do  not  cut  off  equities,  and  it  is  at 
least  doubtful  how  far  they  have  the  implied  power  to  ' 
make  paper  which  shall  have  this  effect.  The  adjudged 
cases  on  this  point  are  conflicting.2 

15  N.  Y.  337;  Bulls®.  Sims,  23  N.  Y.  570,  572;  Clark  v.  Polk  County,  19 
Iowa,  247;  Harvey  v.  W.  P.  S.  Co.,  1  Doug.  (Mich.)  193 ;  Danaw.  San  Fran- 
cisco, 19  Cal.  486;  Justices  v.  Orr,  12  Geo.  137.  Municipal  certificates  of 
indebtedness  are  not  '■'■bills  of  credit  "  within  the  meaning  of  the  prohibition 
(art.  1,  sec.  10)  of  the  National  Constitution.  Baltimore  v.  Board  of  Police, 
15  Md.  376,  1859.  As  a  county  warrant  is  an  instrument  by  which  the 
money,  property,  or  rights  of  a  county  may  be  affected,  it  is  such  an  one  as 
may  be  forged.  State  v.  Fenley,  18  Mo.  445,  1853.  Requisites  of  indictment 
in  such  a  case.     lb. 

Liability  as  respects  scrip  issued  to  circulate  as  money.  Thomas  v.  Rich- 
mond, 12  Wall.  349,  1870,  and  in  which  the  city  was  held  not  to  be  liable. 
See,  on  this  subject,  Allegheny  City  v.  McClurkan,  14  Pa.  St.  81,  1850; 
Jones  v.  Little  Rock,  25  Ark.  301;  Miller*.  Lynchburg,  20  Gratt.  (Va.)  330, 
1871 ;  Smith  v.  New  Orleans,  23  La.  An.  5,  1871 ;  Clark  v.  Des  Moines,  19 
Iowa,  199,  1865;  Dively  v.  Cedar  Falls,  21  Iowa,  565;  S,  C,  27  lb.  227. 

1  McCullough  v.  Moss,  5  Denio,  567;  Straus  v.  Eagle  Insurance  Company, 
5  Ohio  St.  59 ;  Mott  v.  Hicks,  1  Cow.  513 ;  Attorney  General  v.  Insurance 
Company,  9  Paige,  470;  2  Kent  Com.  299 ;  1  Parsons  N.  &  B.  165;  Clark  v. 
Des  Moines,  19  Iowa,  212.     Ante,  sees.  81,  82. 

8  Kelly  v.  Mayor,  &c,  4  Hill  (N.  Y.)  263;  Clark  v.  Des  Moines,  19  Iowa, 
190,  213;  Carne  v.  Brigham,  39  Maine,  39;  Clarke  v.  School  District,  3  Rh. 
Is.  199;  Goodman  v.  Commissioners,  11  Minn  31.     Ante,  sees.  81-83. 

The  ground  has  been  broadly  taken,  that  for  debts  and  obligations  law- 
fully created,  any  corporation,  public  as  well  as  private,  has  the  implied 
authority,  unless  prohibited  by  statute,  charter  or  by-law,  to  evidence  the 
same  by  the  execution  of  a  bill,  note,  bond,  or  other  contract,  and  to  secure 
the  same  by  a  mortgage,  pledge,  or  otner  proper  disposition  of  its  property ; 
that  power  to  contract  a  debt  carries  with  it.  the  power  to  give  a  suitable 
acknowledgment  of  it;  and  there  is  no  rule  of  law  in  the  absence  of  a 
statute  limiting  the  length  of  the  credit.  Municipality  v.  McDonough,  2 
Rob.  (La.)  242,  250,  1842;  Barry  v.  Merchants'  Express  Company,  1  Sandf. 
Ch.  280;  cited  with  approval  in  Curtis  v.  Leavitt,  15  N.  Y.  9,  62,  and  in 
Smith  v.  Law,  21  N.  Y.  296,  299,  1860 ;  Bank,  &c.  v.  Chilicothe,  7  Ohio, 
part  H.  31,  1836;  Ketchum  v.  Buffalo,  14  N.  Y.  356,  1856,  market  house 
bonds  given  on  twenty-five  years'  time  held  valid,  and  see  cases  cited  on 
page  375,  by  Wright,  J. ;  Douglass  v.  Virginia  City,  5  Nev.  147.  See  and 
compare,  however,  Bateman  v.   Mid -Wales  Railway  Company,  Law  Rep.  1 


Ch.  XIV.]  CONTRACTS.  497 

§  408.     Liability  of  Indorser  of  Warrants.  —  Wan-ants 
or  orders  of  a  municipal  corporation  for  the  unconditional 

C.  P.  510.  As  to  express  power  to  issae  bonds,  &c.,  see  also  Bank  of  Rome 
v.  Village  of  Rome,  18  N.  Y.  38,  44,  and  cases  cited;  Mills  v.  Gleason,  8 
Am.  Law  Reg.  683;  Louisiana  State  Bank  v.  Orleans  Navigation  Company, 
3  La.  An.  294.  "  State  bonds  negotiable.     Dclafield  v.  Illinois,  2  Hill,  159. 

Power  "to  borrow  money"  held  to  include  power  to  issue  negotiable  bonds 
or  other  usual  securities  to  the  lender.  Commonwealth  v.  Pittsburg,  34  Pa. 
St.  496,  511;  Rogers  v.  Burlington,  3  Wall.  634,  1865.  Ante,  sec.  81. 
Board  of  Supervisors  of  a  county  have  not  power  to  issue  bill  of  exchange. 
Canal  Bank  v.  Supervisors,  &c,  5  Denio.  517,  1848.  Nor  have  village  trus- 
tees. Lake  v.  Trustees,  4  Denio,  520.  Corporate  city  has  the  power.  Kelly 
v.  Mayor,  4  Hill,  263;  compare  Clark  v.  Des  Moines,  19  Iowa,  199,  213.  In 
Inhabitants,  &c.  v.  Weir,  9  Ind.  224,1857,  an  action  against  a  congressional 
township  upon  a  promissory  note  made  by  the  trustees,  the  court,  per 
Stuart,  J.,  says  :  "  There  is  no  power  to  make  notes  conferred  by  the  act  of 
1841.  That  act  was  the  charter  under  which  they  acted.  The  trustees  as 
a  corporation,  had  no  power  but  such  as  that  act  expressly  conferred,  and 
such  as  might  arise  by  implication,  or  essential  to  the  exercise  of  those 
granted.  Such  a  power  is  always  expressed,  even  in  bank  charters.  In  so 
limited  a  corporation  as  a  congressional  township,  the  power  to  make 
promissory  notes  could  hardly  be  implied.  The  case  at  bar  cannot  easily  bt 
distinguished  in  principle  from  McClure  v.  Bennett,  1  Blackf.  189,  and 
Mears  v.  Graham,  8  11.  144." 

Statutory  power  ki  to  issue  county  orders"  gives  no  authority  to  issue  ne- 
gotiable bonds  payable  at  a  future  day,  with  interest  coupons  attached. 
The  difference  is  substantial.  Goodnow  v.  Commissioners,  11  Minn.  31 
1865;  County  Commissioners  v.  Carter,  2  Kansas,  115,  1860;  Hull  v.  County 
12  Iowa,  142.  Statutory  form  of  county  warrants  held  to  be  directory,  and 
a  mere  departure  from  this  form  is  no  defence  to  an  action  on  the  warrant. 
Young  v.  Camden  County,  19  Mo.  309,  1854. 

Authority  to  a  city  to  subscribe  for  stock  to  be  paid  for  by  "  certificates 

of  loan,"  authorizes  it  to  issue  negotiable  bonds  with  coupons  attached 

such- "  certificates  of  loan  "  and  "bonds  "  being  considered  identical.  Amey 
v.  Allegheny  City,  24  How.  (TJ.  S.)  364,  1860;  see   Commonwealth  r.  Pitts- 
iurg  (power  "to  borrow  money")  34  Pa.  St,  496,  511;  Same  r.  Bam 
Pa.  St.  278.     Power  by  public  corporations  to  issue  negotiable  bonds  may 
be  inferred  from  the  power  to  subscribe  for  stock  and  to  make  payment  for 
it.     Curtis  v.  Butler  County,  24  How.  (U.  S.)  435;  Bushnell  v.  Beloit,  10 
Wis.  195.     Express  legislative  authority  to  a  city  to  subscribe  lor  stock  in 
a  railroad  "as  fully  as  any  individual,"  authorizes  the  issue,  by  the  city,  of 
negotiable  bonds  in  payment  therefor.     Seybert  v.  Pittsourg,  1  Wall.  (U  S.) 
272,  1863;  approving,  Commonwealth  v.  Same,  41  Pa.  St.  278;   Rog 
Burlington   (power  to    "borrow  money  for  any  public  purpose")  3  Wall. 
654,  1865;  Meyer  v.  Muscatine,  1  Wall.  385;  Mitchell  v.  Burlington,  4  Wall 
270.     By  resolution,  the  council  authorized  the  mayor  to  borrow   money  of 
a  bank  and  execute  the  note  of  the  corporation  therefor,  instead  of  wliicL 


49«  MUNICIPAL     CORPORATIONS.  [Ch.  XIV, 

payment  of  money  to  a  person  named,  or  order,  or  bearer, 
have  the  character  of  negotiable  paper,  so  far,  at  least,  ay 
to  render  parties  indorsing  them  liable  as  indorsers.1 

he  executed  the  bond  of  the  corporation  under  the  seal  of  the  corporation. 
In  an  action  on  this  bond  by  the  payee,  it  was  held  that  the  corporation 
could  plead  non  est  factum,,  since  the  act  of  the  mayor  in  executing  a  writing 
obligatory  instead  of  a  note,  did  not  bind  the  corporation.  Little  Rock  v. 
State  Bank,  3  Eng.  (Ark.)  227 ;  see  Damon  v.  Granby,  2  Pick.  345 ;  Randall 
p.  Van  Vechten,  19  Johns.  60 ;  Bank  v.  Patterson,  7  Cranch,  229 ;  Head  v. 
Insurance  Company,  2  lb.  127.  Where  towns  were  required  "  to  purchase" 
liquors,  and  the  selectmen  were  indictable  if  they  failed  to  make  provision 
for  executing  the  law,  it  was  held  that  a  town  might  give  a  negotiable  note 
for  liquors  actually  purchased,  and  that  the  town  could  not  defend  against 
it  in  the  hands  of  a  bona  fide  holder  on  the  ground  that  the  liquors  were 
sold  in  violation  of  the  law  of  the  state.  Bank  v.  Farmington,  41  N.  H. 
32,  1860.     "What  an  indorsee  is  bound  to  inquire  about,  stated,     lb.  42. 

The  general  doctrines  of  the  text  in  sections  405^07,  are  coincident  with 
the  views  of  the  United  States  Supreme  Court  in  the  recent  case  of  the 
Police  Jury  v.  Britton,  15  Wall.  566,  1872,  where  it  was  held  that  county 
officers  in  Louisiana,  with  the  usual  powers  of  such  officers,  have  no  implied 
authority  to  issue  negotiable  papier  (bonds  with  coupons),  payable  in  the 
future,  to  raise  money  or  to  fund  an  existing  debt,  which  will  cut  off  equities 
in  the  hands  of  bona  fide  holders.  Such  a  power  is  not  necessarily  incident 
to  the  power  to  make  specified  expenditures  or  improvements,  though  it 
may  be  implied  from  certain  express  powers,  as  for  example  the  power  to 
borrow  money.  After  stating  other  instances  in  which  the  power  has  been 
implied,  Mr.  Justice  Bradley  observes:  "But  in  our  judgment  these  impli- 
cations should  not  be  encouraged  or  extended  beyond  the  fair  inferences  to 
be  gathered  from  the  circumstances  of  each  case.  It  would  be  an  anomaly, 
justly  to  be  deprecated,  for  all  our  limited  territorial  boards,  charged  with 
certain  objects  of  necessary  local  administration,  to  become  fountains  of 
commercial  issues,  capable  of  floating  about  in  the  financial  whirlpools  of 
our  large  cities."     15  Wall.  572. 

1  Bull  v.  Sims,  23  N.  Y.  570,  1861.  In  this  case  the  action  was  by  an 
indorsee  against  the  defendant  as  indorser  of  the  following  instrument : — 

"  Milwaukee,  Aug.  1,  1859. 

"The  treasurer  will,  or  on  before  the  1st  day  of  February  next,  pay  to 
the  order  of  E.  Sims,  fifty  dollars,  out  of  any  funds  belonging  to  the  city  not 
before  specially  appropriated,  the  same  having  been  this  day  allowed  for 
dredging,  and  chargeable  to  the  general  city  fund. 

"R.  R.  Lynch,  Clerk.  H.  L.  Page,  Mayor." 

It  was  held  that  the  defendant  incurred  the  responsibility  of  an  indorser 
of  negotiable  paper,  and  that  the  plaintiff  was  not  bound  to  show  the  exist- 
ence of  sufficient  funds  in  the  city  treasury  to  pay  the  warrants,  and  not 
specially  appropriated  at  the  time  of  its  maturity.  Campbell  v.  Polk 
County,  3  Iowa,  467;  Hodges  v.  Shuler,  22  N.  Y.  114;  Fairchild  v.  Ogden- 


Ch.  XIV.]  CONTRACTS.  499 

§  409.  Payment  and  Cancellation  of  Warrants. — 
Payment  by  the  treasurer  or  proper  officer  of  a  municipal 
corporation  of  its  orders  or  warrants  ipso  facto  extinguishes 
them.  If  lent,  re-issued,  or  put  into  circulation  again  by 
the  officer,  after  he  has  once  obtained  credit  therefor,  they 
are  not  valid  securities,  not  even,  it  seems,  in  the  hands*  of 
an  innocent  holder.1 

§  410.  Rights  and  Remedies  of  Holder  of  Warrants. — 
A  creditor  of  a  town  is  not  bound  to  receive  an  order  on  the 
treasurer,  but  may  sue  upon  his  original  cause  of  action.1 
But  if  he  does  receive  it  he  is  charged  with  the  duty  of 
presenting  it  to  the  treasurer,  upon  whom  it  is  drawn,  or  of 
alleging  facts  which  excuse  presentment,  before  he  can 
maintain  an  action  upon  it.  As  such  an  order  is,  in  effect, 
an  order  by  the  debtor  on  himself,  if  presented  and  pay- 
ment be  refused,  the  town  is  liable  instantly,  and  without 
notice  of  non-payment.3 

burgh,  &c.  Railroad  Company,  15  N.  Y.  337.  Compare  as  to  liability  of  in- 
dorser :  Keller  v.  Hicks,  22  Cal.  457. 

1  Canal  Bank  v.  Supervisors,  5  Denio  (N.  Y.)  517,  1848.  In  this  case  it 
■was  held  that  where,  without  any  fraudulent  intent,  the  holder  of  valid 
county  orders  exchanged  them  with  the  treasurer  for  others  which  were 
in  fact  paid,  but  which  had  never  been  allowed  him  in  his  accounts,  the 
debt  represented  by  the  valid  orders  was  not  extinguished,  and  was  a 
sufficient  consideration  to  support  a  settlement  with  the  county  allowing 
it.  As  to  illegal  orders  in  hands  of  bona  fide  holder:  Halstead  v.  The  Mayor, 
&c.  of  New  York,  3  Comst.  430 ;  affirming  S.  C,  5  Barb.  218.  Payment  to 
bearer  in  good  faith  exonerates  the  corporation.  Sweet  v.  Carver  Co.,  16 
Minn.  106,  1871. 

1  Benson  v.  Carmel,  8  Greenl.  112;  Willey  v.  Greenfield,  30  Maine,  452, 
1849. 

'  Varner  v.  Nobleborough,  2  Greenl.  121,  where  Mellen,  C.  J.,  says:  "No 
sound  reason  can  be  given  why  a  town  should  be  subjected  to  the  perplexity 
of  costs  of  an  action  before  the  payee  of  an  order  will  do  his  duty  and  re- 
quest the  payment."  "There  is  an  implied  engagement  to  conform  to  es- 
tablished usage,  and  present  the  order  for  payment."  Benson  V.  Carmel, 
supra;  Pease  v.  Cornish,  19  Maine  (1  Appl.)  191,  1841.  As  to  mode  of  pre- 
sentment: Steel  v.  Davis  County,  2  G.  Greene  (Iowa)  401);  Campbell  c 
Polk  County,  3  Iowa,  467.  Where  the  payee  has  accepted  county  orders 
for  a  debt  against  the  county,  and  lias  parted  with  such  orders,  he  cannot 
sue  the  county  for  the  original  debt.  Crawford  County  v.  Wilson,  'J  Eng. 
(Ark.,  014.  1846.  See  Allison  v.  Juniata  County,  50  Pa.  St.  351.  An  unpaid 
and  dishonored  warrant  on  the  corporation  treasurer  is  not,  prima  f< 


500  MUNICIPAL     CORPORATIONS.  [Ch.  XIV. 

§  411.  Presumption  of  Liability. — County  and  city 
orders  signed  by  the  proper  officers  are,  prima  facie,  bind- 
ing and  legal.  These  officers  will  be  presumed  to  have 
done  their  duty.  Such  orders  make  a  prima  facie  cause  of 
action.     Impeachment  must  come  from  the  defendant.1 

§  412.  Defences. — A  municipal  corporation  is  not  es- 
topped, after  a  warrant  upon  its  treasury  has  been  issued,  to 
set  up  the  defence  of  ultra  vires,  or  fraud,  or  want,  or 
failure  of  consideration.*  And  it  may  maintain  a  bill  in 
equity  to  cancel  warrants  illegally  issued.8 

least,  an  extinguishment  or  novation  of  the  original  debt.     Goldschmidt  v. 
New  Orleans,  5  La.  An.  436;  Short  v.  New  Orleans,  4/5.  281. 

1  Commissioners  v.  Day,  19  Ind.  450,  1862;  9  II.  359;  Commissioners?). 
Keller,  6  Kansas,  510,  1870;  Clark  v.  Des  Moines,  19  Iowa,  211,  1865.  Such 
debts  "  do  not  stand  on  the  footing  of  those  contracted  under  a  special  con- 
ditional grant  of  power."  19  Ind.  450;  Peoples.  Mead,  24  N.  Y.  114.  Ante, 
chap.  IX.  p.  274,  sec.  152;  supra,  sec.  406. 

2  Thomas  v.  Richmond  (scrip  to  circulate  as  money),  12  ~N&\\.  349 
1870;  Webster  County  v.  Taylor,  19  Iowa,  117,  1865;  Clark  v.  Des  Moines, 
lb.  199;  Clark®.  Polk  County,  lb.  248;  Hodges  v.  Buffalo,  2  Denio,  110; 
Halstead  v.  Mayor,  &c,  3  N.  Y.  430;  Brown  v.  Utica,  2  Barb.  104;  An- 
thony v.  Inhabitants,  &c,  1  Met.  286.  The  allowance  of  a  claim  by  a  county 
board  is  not  final  and  conclusive.  Such  allowance  is  prima  facie  evidence 
of  the  correctness  of  the  claim,  " but,"  says  Kingman,  C.  J.,  "the  settle- 
ment of  an  account  by  the  .county  board  is  not  more  sacred  than  a  settle- 
ment made  by  individuals."  The  court  therefore  held,  and  properly  so, 
that  the  allowance  of  a  claim  by  the  county  was  not  an  adjudication  in  the 
sense  that  it  would  conclude  the  county  as  to  the  amount  allowed  when 
sued  upon  the  warrant  drawn  in  pursuance  of  such  allowance.  Commis- 
sioners v.  Keller,  6  Kansas,  510,  1870.  Pout,  chap.  XXIII.  Warrants 
may,  it  seems,  be  usurious.  Clark  v.  Des  Moines,  supra.  Post,  sec.  414, 
note. 

3  Pulaski  County®.  Lincoln,  4  Eng.  (Ark.)  320,  1849;  Webster  County 
v.  Taylor,  19  Iowa,  117,  1865;  Trustees  v.  Cherry,  8  Ohio  St.  564,  1858; 
Glastenbury  v.  McDonald,  44  Vt.  450,  1872.  In  Mississippi  a  board  known 
as  the  board  of  police  are  authorized  by  law  to  audit  and  allow,  upon  due 
proof,  all  claims  against  the  county,  and  counties  in  that  state  cannot  be 
sued  directly.  The  action  of  the  board  in  allowing  claims  for  matters  of 
county  charge,  and  in  ordering  warrants  to  issue  therefor,  is  final  and  con- 
clusive on  the  county,  in  the  absence  of  fraud,  until  it  is  reversed  or  va- 
cated. Carroll  v.  Board,  &c,  28  Miss.  (6  Cush.)  38,  1854.  Issuing  new 
orders  for  old  :  Effect  of,  see  Clark  v.  Des  Moines,  19  Iowa,  199;  Canal 
Bank  v.  Supervisors,  5  Denio,  517;  Lake  v.  Trustees,  4  lb.  520.  On  war- 
■ants  or  orders  the  statute  of  limitations  does  not  begin  to  run  until  payment 


Ch.  XIV.]  CONTRACTS.  501 

§  413.  Payable  out  of  a  particular  fund. — If  by  law  a 
particular  claim  is  to  be  paid  out  of  a  special  fund*  a  war- 
rant or  order  issued  therefor  should  be  made  payable  out  of 
such  fund  ;  if  made  payable  from  the  treasury  generally  by 
the  officers  issuing  it,  the  corporation  is  not  bound  by  their 
act.1  An  order  or  warrant  concluding  with  the  words  "  and 
charge  the  same  to  the  account  of  Union  Avenue,"  is  pay- 
able out  of  the  particular  fund  indicated,  and  is  not  a  claim 
against  the  corporation."  But  the  distinction  must  be  ob- 
served between  orders  payable  out  of  a  particular  fund,  and 
those  which  evidence  a  general  corporate  liability  but  are 
directed  to  be  charged  to  a  particular  account.8 

is  denied.  Justices  v.  Orr,  12  Ga.  137,  1852.  See  Carroll  v.  Board,  &c, 
28  Miss.  38;  De  Cordova  v.  Galveston  (bonds),  4  Texas,  470;  City  v.  Lamson 
(coupons),  9  Wall.  478.  Supra,  sec.  406,  note;  Baker  v.  Johnson  County, 
33  Iowa,  151. 

1  County  Commissioners  v.  Cox,  1  Ind.  403,  1855;  Campbell  v.  Polk, 
County,  49  Mo.  214,  1872.     Post,  chap.  XX. 

2  Lakes.  Trustees,  &c,  4  Denio  (N.  Y.)  520,  1847,  remedy  of  holder 
discussed;  distinguished  from  Kelly  v.  Mayor,  &c.  of  Brooklyn,  4  Hill, 
263;  and  see  McCullough  v.  Mayor,  &c,  23  Wend.  458;  Cuyler  v.  Rochester, 
12  Wend.  165 ;  Argenti  v.  San  Francisco,  16  Cal.  255,  and  note  remarks  of 
Field,  C.  J.;  Martin  v.  San  Francisco,  lb.  285;  Kingsberry  v.  Pettis  Co., 
48  Mo.  207,  1871.     An  instrument  in  this  form : 

"December  31,  1836. 
"  City  of  Brooklyn,  ss.     To  the  City  Treasurer.     Pay  A.  L.   or  order. 
$1500,  for  award  No.  7,  and  charge  to  Bedford  road  assessment,  &c. 

"J.  T.,  Mayor. 

"A.  G.  S.,  Clerk" 
Held,  1st.  Negotiable,  and  not  payable  out  of  any  special  fund.  2nd.  Cor- 
poration was  not  discharged  by  failure  to  present  and  give  notice,  no  dam- 
age or  injury  being  sustained  in  consequence  of  the  omission.  Kelly  v. 
Mayor,  &c,  4  Hill  (N.  Y.)  263,  1843;  Steel  v.  Davis  County,  2  G.  Greene 
(Iowa)  469 ;  Campbell  v.  Polk  County,  3  Iowa,  467. 

3  Clark  v.  Des  Moines,  19  Iowa,  199,  222;  Edwards  on  Bills,  143;  Pease 
v.  Cornish,  19  Maine,  191 ;  Campbell  v.  Polk  County,  3  Iowa,  407 ;  Com- 
missioners v.  Mason,  9  Ind.  97;  Bayergue  v.  San  Francisco.  1  McAll.  C.  C. 
R.  175;  Bull  v.  Sims,  23  N.  Y.  570;  Montague  r.  Iloran,  12  Wis.  599.  In 
an  action  on  a  county  order  payable  out  of  the  three  per  cent,  fund,  "as 
fast  as  the  same  shall  accrue  to  the  county,"  it  must  be  alleged  that  the  county 
has  received  money  from  the  specific  fund  named  applicable  to  the  order  in 
suit,  or  that  the  order  was  fraudulently  drawn  upon  a  fund  in  which  the 
county  had  no  assets.  Commissioners  v.  Mason.  9  Ind.  97,  1857.  See 
chapter  on  Mandamus,  post 


502  MUNICIPAL    CORPORATIONS.  [Ch.  XIV. 

§  414.  Interest  on  Corporate  Indebtedness.  —The  rule  in 
respect  to  interest  on  debts  against  municipal  corporations, 
does  not  ordinarily  differ  from  that  which  applies  to 
individuals.1  Under  the  Missouri  statute,  providing  gen- 
erally that  creditors  shall  be  allowed  interest  at  the  rate  of 
six  per  cent,  per  anum,  &c,  it  is  held  that  county  warrants 
draw  interest  after  presentment  to  the  treasury  and  refusal 
of  payment  by  the  treasurer,  the  court  regarding  the  general 
statute  as  to  interest  broad  enough  to  embrace  all  debtors- 
counties  as  well  as  individuals.9  But  in  Illinois  it  is  held 
that  the  debts  of  municipal  corporations  are  payable  at  the 
treasury  of  the  body  ;  that  interest  on  coupons— that  is, 
interest  on  interest — cannot  be  recovered,  unless  there  be  a 
special  agreement  to  that  effect,  since  such  corporations  are 
not  named  in  the  act  regulating  interest.  The  court  remarks : 
"  \yhatever  power  these  corporations  may  possess  to  con- 
tract for  the  payment  of  interest,  in  the  absence  of  any 
express  legislation  on  the  subject,  we  are  of  opinion  that 
their  indebtedness,  in  the  absence  of  such  agreement,  does 
not  bear  interest.  If  such  instruments  (coupons)  could  in 
any  event  draw  interest  without  an  express  agreement,  it 
could  only  be  after  a  proper  demand  of  payment.  Until  a 
demand  is  made,  such  a  body  is  not  in  default.  They  are 
not  like  individuals— bound  to  seek  their  creditors  to  make 
payments  of  their  indebtedness."  3 

1  Langdon  v.  Castleton,  30  Vt.  285  (action  on  book  account). 

2  Robbins  v.  County  Court,  3  Mo.  57,  1831.  In  Iowa,  coupons  on  county 
and  city  bonds  are  held  to  draw  interest.  Rogers  v.  Lee  County,  1  Dillon 
C.  C.  R.  529.  See  Railroad  Company  v.  Evansville,  15  Ind.  395.;  Hollings- 
worth  v.  Detroit,  3  McLean,  472;  Pruyn  v.  Milwaukee.  18  Wis.  367.  If, 
under  authority  to  issue  bonds  with  eight  per  cent,  interest,  bonds  be  issued 
drawing  twelve  per  cent.,  they  are  valid  and  bear  interest  at  the  statutory 
rate.  Quincy  v.  Warfield,  25  111.  317.  Usury.  Whether  usury  can  be  pre- 
dicated of  a  sale  or  issue  by  a  corporation  of  its  securities.  So  held,  Danville 
3.  Sutherlin,  20  Gratt.  (Va.)  555,  1871  ;  Lynchburg  v.  Norvell,  20  Gratt. 
(Va.)  601,  1871 ;  Clark  v.  Des  Moines,  19  Iowa,  199.  May  be  made paydbifi 
out  of  the  state.  Meyer  v.  Muscatine,  1  Wall.  384;  Maddox  v.  Graham,  2 
Met.  (Ky.)  56. 

3  Pekin  v.  Reynolds,  31  111.  529,  1863;  S.  P.  Chicago  v.  People,  56  111. 
327,  1870  ;  People  v.  Tazewell  County,  22  111.  147;  Johnson  v.  Stark  County, 
24  111.  75.  In  Madison  County  v.  Bartlett,  1  Scam.  (111.)  67,  it  was  held 
that  counties  were  not  liable  to  pay  interest  on  their  orders  or  warrants. 


Ch.  XIV.]  CONTRACTS.  50o 

§  415.  Railroad-  Aid  Bonds — Course  of  Decision  in 
the  United  States  Supreme  Court. — There  has  been  much 
controversy,  as  heretofore  shown,  in  the  different  States  con- 
cerning the  constitutional  poioer  of  the  legislature  to  au- 
thorize municipal  and  public  corporations  to  subscribe  for 
stock  in  private  railway  companies  and  to  levy  and  collect 
taxes  to  pay  indebtedness  thus  created.1     Respecting  nego- 

not  being  named  in  the  statute  regulating  interest,  and  the  common  law 
not  allowing  it  to  be  recovered.  So  in  Pennsylvania:  Allison  v.  County,  50 
Pa.  St.  351.  In  that  state  a  county  is  not  suable  on  its  warrants,  but  suit 
must  be  on  original  claim.     I  b.     Post,  chap.  XX. 

1  Ante,  chap.  VI.  sec.  104,  et  seq.  Since  the  decision  of  the  Supreme 
Court  of  Michigan,  in  the  People  v.  Township  Board  of  Salem,  20  Mich. 
452;  S.  C,  9  Am.  Law  Reg.  (N.  S.)  487,  before  mentioned  (an'e,  sec.  105), 
the  question  arose  in  the  United  States  Circuit  Court  for  the  western  dis- 
trict of  Michigan,  in  an  action  on  municipal  railway  aid  bonds,  whether  the 
federal  court  was  concluded  by  the  judgment  of  the  Supreme  Court  of  the 
state,  and,  if  not,  whether  the  holder  of  bonds,  issued  in  full  compliance 
with  the  statute,  could  recover  thereon.  Emmons,  Circuit  Judge,  in  an 
elaborate  opinion,  holds,  as  to  bonds  issued  before  the  decision  of  the 
Supreme  Court  of  the  state,  that  the  federal  courts  are  not  concluded 
thereby,  and  that  the  constitutional  power  of  the  legislature  to  authorize 
their  issue,  in  the  absence  of  special  limitations,  must  be  regarded  as  settled, 
at  least  as  respects  the  federal  tribunals.  The  opinion  displays  great 
research  and  learning,  and  will  be  found  reported  under  the  name  of  Tal- 
cott  v.  Township  of  Pine  Grove,  vol.  I.  Bench  and  Bar  (N.  S.)  50,  1872. 
The  Supreme  Court  of  Michigan  adheres  to  its  opinion  on  this  subject  in 
the  latter  case  of  the  People  v.  State  Treasurer.  Ante,  sec.  105.  The 
course  of  reasoning  of  Emmons,  J.,  in  this  case  is  coincident  with  that  of 
the  Supreme  Court  of  the  United  States  in  the  recent  case  of  Olcott  v.  The 
Supervisors,  December  Term,  1872.  In  the  case  just  mentioned  the  Circuit 
Court  of  the  United  States,  sitting  in  Wisconsin,  decided  that  since  the 
Supreme  Court  of  that  state  had  held  a  certain  act  under  which  the  bonds 
in  question  were  issued  to  bo  unconstitutional,  and  had  never  h olden  other- 
wise, that. this  construction,  though  given  after  the  bonds  were  issued,  was 
binding  upon  or  should  be  followed  by  the  federal  courts.  But  the  Supreme 
Court  of  the  United  States  was  of  the  opinion  that,  inasmuch  as  the  decision 
of  the  State  Supreme  Court  was  not  based  upon  any  special  and  peculiar 
provision  of  the  state  constitution,  but  upon  general  principles  of  law,  and 
related  to  contracts,  the  case  was  not  one  in  which  the  decision  of  the  Mate 
Court  had  any  other  than  a  persuasive  force,  and  it  reversed  the  judgment 
of  the  Circuit  Court,  and  held  that  the  bonds  could  be  enforced.  Post,  eec. 
416&. 

In  Gilchrist  v.  Little  Rock,  1  Dillon  C.  C.  R.  261,  and  in  Ranlett  v. 
Leavenworth,  lb.  263,  the  Circuit  Court  of  the  United  States  for  the  eighth 
•circuit,  prior  tD  any  decisions  of  the  Supreme  Courts  of  the  states  of  Arkan- 


504  MUNICIPAL    CORPORATIONS.  [Cn.  XIV. 

liable  bonds  issued  under  legislative  authority  by  munici- 
palities for  sucli  and  kindred  purposes,  when  in  the  hands 
of  bona  fide  holders,  the  Supreme  Court  of  the  United 
States,  influenced,  doubtless,  by  a  keen  sense  of  the  in- 
justice and  odium  of  repudiation,  has  at  all  times  displayed 
a  strong  determination  effectually  to  enforce  their  payment. 

§  416.  Accordingly,  it  has  refused  to  be  concluded  by 
decisions  of  the  state  court  against  the  validity  of  such 
bonds,  made  after  the  bonds  were  issued ;'  it  has  adopted, 
when  necessary  to  protect  the  bona  fide  holders  of  such  se- 
curities, liberal  constructions  or  statutes  and  charters  au- 
thorizing the  creation  of  such  debts  ;a  against  such  holders 
it  has  given  no  favor  to  defences  based  upon  mere  irregu- 
larities in  the  issue  of  the  bonds  or  non-compliance  with 
preliminary  requirements,  not  going  to  the  question  of 
power  to  issue  them  ;s  and  has  held  that  the  Circuit  Courts 
of  the  United  States  were  clothed  with  full  authority,  by 
mandamus  or  otherwise,  to  enforce  the  collection  of  judg- 
ments rendered  therein  on  such  bonds,  and  that  this  author- 
ity could  not  in  the  least  be  interfered  with,  either  by  the 
legislature  or  the  judiciary  of  the  states.4     It  has  upheld 

sas  and  Kansas  as  to  the  constitutional  validity  of  municipal  railway  aid 
bonds,  declined  to  pronounce  such  bonds  in  the  hands  of  bona  fide  holders 
to  be  void  for  the  want  of  authority  in  the  state  legislature  to  authorize 
their  issue.  History  of  the  Iowa  municipal  bond  cases.  King  v.  Wilson,  1 
Dillon  C.  C.  R.  555. 

1  Gelpcke  v.  Dubuque,  1  Wall.  175,  1865;  Havemeyer  v.  Iowa  County,  3 
lb.  294;  Thompson  v.  Lee  County,  lb.  327;  Lee  County  v.  Rogers,  7  lb. 
181 ;  Butz  v.  Muscatine,  9  lb.  571 ;  Olcott  v.  Supervisors,  December  Term, 
1872;  Post,  sec.  4166;  City  v.  Lamson,  9  Wall.  477;  Campbell  v.  Kenosha,  5 
Wall.  194,  1866.  Read  last  two  cases  in  connection  with  Foster  v.  Kenosha, 
12  Wis.  616,  which,  in  effect,  is  overruled  or  disregarded.  See  on  this  point 
Steines  v.  Franklin  County,  48  Mo.  167;  Columbia  County  v.  King,  13- 
Florida,  451. 

2  Gelpcke  v.  Dubuque,  supra;  Meyer  v.  Muscatine  (charter  authorizing 
borroicing  of  money),  1  Wall.  384;  Rogers  v.  Burlington,  3  lb.  654;  Van 
Hostrup  v.  Madison  City,  1  Wall.  291 ;  Seybert  v.  Pittsburg,  1  Wall.  272. 

3  Knox  County?;.  Aspinwall,  21  How.  539;  Moran  v.  Commissioners,  2 
Black,  722;  Bissell  v.  Jefferson vi lie,  24  How.  287;  Marsh  v.  Fulton  County, 
10  Wall.  676,  1870. 

4  Von  Hoffman  v.  Quincy,  4  Wall.  535 ;  Galena  v.  Amy,  5  lb.  705 ;  Rigg» 


Ch.  XIV.]  CONTRACTS.  5Q5 

and  protected  the  rights  of  such  creditors  with  a  firm  hand, 
disregarding,  at  times,  it  would  seem,  principles  which  it 
applied  in  other  cases,  and  asserting  the  jurisdiction  and 
authority  of  the  federal  courts  with  such  striking  energy 
and  vigor  as  apparently,  if  not  actually,  to  trench  upon  the 
lawful  rights  of  the  states  and  the  acknowledged  powers  of 
the  state  tribunals  ;  yet,  upon  the  whole,  there  is  little 
doubt  that  its  course  has  had  the  approval  of  the  profession 
in  general  and  of  the  public,  and  it  will  be  well  if  it  shall 
teach  municipalities  the  lesson  that  if,  having  the  power  to 
do  so  conferred  upon  them,  they  issue  negotiable  securities, 
they  cannot  escape  payment  if  these  find  their  way  into  the 
hands  of  innocent  purchasers.  Unfortunately,  as  will  pres- 
ently appear,  the  decisions  on  this  important  subject  in  the 
Supreme  Court  of  the  nation,  and  in  some  of  the  state 
courts,  are  not  in  all  respects  harmonious.1 

§  416a.  Under  the  line  of  decision  in  the  several  States 
heretofore  adverted  to,  sustaining  the  constitutionality  of 
municipal  railway  aid  bonds,2  millions  upon  millions  of  these 
securities  have  been  issued  by  townships,  counties  and 
cities  in  the  different  states,  and  sooner  or  later  their  issue 
has  been  quite  generally,  though  not  always,  followed  by 
attempts  to  escape  payment.  The  misrepresentations  which 
have  oftentimes  induced  the  issue  of  the  bonds,  and  the  dis- 
appointment arising  from  the  over-estimated  benefits  of  the 
roads  to  the  localities  which  aided  their  construction,  make 
the  attempts  to  avoid  payment  of  the  bonds  not  unnatural, 
and  more  excusable  than  they  would  otherwise  be.  The 
judicial  history  of  these  attempts  is  found  in  the  law  reports 
of  the  different  states  and  in  those  oi.  the  federal  tribunals  ; 
and  a  comparison  of  their  judgments  shows  such  a  diversity 
of  opinion  upon  some  important  questions  connected  with 
such  securities  as  to  render  it  most  expedient  to  refer  sepa- 
rately to  the  decisions  of  the  two  classes  of  courts.     It  is 

v.  Johnson  County,  6  lb.  166;  Butz  v.  Muscatine,  8  lb.  375.  See,  also,  post, 
chap.  XX.  on  Mandamus,  and  cases  there  cited. 

1  The  general  questions  relating  to  the  power  to  aid  railways  are  con- 
sidered in  a  previous  chapter.     Ante,  chap.  VI.  sec.  104,  et  seq. 

9  Ante,  sec.  104,  et  seq. 


506  MUNICIPAL     CORPORATIONS.  :Cn.  XIV. 

particularly  important  to  notice  with  some  fullness  and  carr 
the  opinions  of  the  Supreme  Court  of  the  United  States, 
since,  for  the  reasons  above-mentioned,  the  course  of 
this  tribunal  and  of  the  state  tribunals  has  been  such  as  to 
draw  to  the  federal  courts,  in  most  of  the  states,  all,  or  nearly 
all,  of  the  litigation  arising  from  this  source.  Wherein  the 
state  courts  and  the  federal  courts  differ,  and  wherein  they 
agree,  will  best  appear  by  referring  to  some  of  the  principal, 
adjudications. 

§  4165.  In  the  well-known  Iowa  municipal  railway  aid 
bond  cases,1  the  bonds  were  issued  after  the  State  Supreme 
Court  had  affirmed'  the  constitutional  power  of  the  leg- 
islature to  authorise  their  issue,  and  before  the  sam^ 
court  had  reversed  its  holding  in  this  respect ;  and  in 
these  cases  the  Supreme  Court  of  the  United  States  held  it 
was  at  liberty  to  take,  and  it  did  take,  the  view  which  ob- 
tained in  the  highest  judicial  tribunal  of  the  state  at  the 
time  the  bonds  were  issued  ;  and  hence  it  adjudged  that  the 
bonds  were  binding  upon  and  enforceable  against  the  muni- 
cipalities and  counties,  although  the  Supreme  Court  of  the 
State  was  at  the  same  time  holding  that  under  the  constitu- 
tion and  laws  of  Iowa  the  bonds  were  utterly  void.  Subse- 
quently, the  Supreme  Court  of  the  United  States  went 
f  rther,  and  in  a  recent  case  it  held  that  such  bonds  in  the 
hands  of  innocent  holders  are  valid,  although  the  State 
Supreme  Court  had  held  otherwise,  the  latter  basing  its 
judgment,  however,  upon  the  general  principles  of  the  law 
and  not  upon  any  special  and  peculiar  provision  of  the  con- 
stitution of  the  state.2     It  seems  quite  clearly  to  be  the  doc- 

1  Gelpcke  v.  Dubuque,  1  Wall.  175, 1865;  Thompson?).  Lee  Co.,  3  Wall. 
327,  1865;  Havemeyer  v.  Iowa  County,  3  Wall.  294;  Rogers  v.  Burlington, 
3  Wall.  654,  1865;  Mitchell  v.  Burlington,  4  Wall.  270  ;  ante,  sec.  416;  Lee 
County  v.  Rogers,  7  Wall.  181,  1868;  Butz  v.  Muscatine,  8  Wall.  575;  King 
v.  Wilson,  1  Dillon  C.  C.  555,  1871,  gives  a  view  of  the  decisions  of  the 
state  and  federal  courts  upon  the  subject  of  municipal  railway  aid  bonds  in 
Iowa.  That  obligations  of  contracts  cannot  be  impaired  by  subsequent 
decisions  see,  also,  Chicago  ».  Sheldon.  9  Wall.  50 ;  City  v.  Lawson,  9  Wall. 
477,  1869. 

1  Olcott  v.  Supervisors,  &c,  U  S.  Sup.  Court,  Dec.  T.  1872.  Ante, 
sec.  415,  note. 


Ch.  XIV.  J  MUNICIPAL    COURTS.  507 

trine  of  the  United  States  Supreme  Court  upon  this  subject, 
that  it  is  not  concluded  by  the  decisions  of  the  state  courts 
in  any  case  where  they  are  made  after  the  bonds  are  issued 
and  have  been  sold  in  the  markets  ;  and  such  is  undoubtedly 
its  doctrine  in  all  cases  relating  to  this  class  of  securities, 
where  the  questions  involved  do  not  turn  upon  the  construc- 
tion of  peculiar  provisions  of  the  state  constitution  and 
laws.  It  has  not  decided  that  it  would  hold  valid  bonds 
issued  after  the  Supreme  Court  of  the  state  had  held  them 
to  be  invalid,  and  it  would  not  probably  so  hold,  since  such 
a  doctrine  is  not  necessary  to  protect  the  innocent  owners  of 
such  securities,  and  would  involve  the  consequence  of  the 
federal  courts  setting  up  a  policy  in  a  state  contrary  to  its 
constitution  and  laws  as  expounded  by  its  authorized  and 
rightful  tribunals.1 

§  416c.  As  preliminary  to  a  more  immediate  view  of  the 
principal  cases  decided  by  the  Supreme  Court  of  the  United 
States  upon  municipal  railway  aid  securities,  it  may 
be  observed  that  the  general  result  of  its  decisions  have 
been  very  clearly  summarized  in  one  of  its  most  recent  judg- 
ments relating  to  bonds  of  this  character.  "  Bonds,  payable 
to  bearer,"  says  the  learned  Justice  who  delivered  the 
opinion  of  the  court,  "issued  by  a  municipal  corporation 
to  aid  in  the  construction  of  a  railroad,  if  issued  in  pursuance 
of  a  power  conferred  by  the  legislature,  are  valid  com- 
mercial instruments  ;  but  if  issued  by  such  a  corporation 
which  possessed  no  potcer  from  the  legislature  to  grant 
such  aid,  they  are  invalid,  even  in  the  hands  of  innocent 
holders.  Such  a  power  is  frequently  conferred  to  be  exi  r- 
cised  in  a  special  manner,  or  subject  to  certain  regulations, 
conditions  or  qualifications,  but  if  it  appears  that  the  bonds 
issued  show  by  their  recitals  that  the  power  was  exercised 
in  the  manner  required  by  the  legislature,  and  that  the 
bonds  were  issued  in  conformity  with  those  regulations  and 
pursuant  to  those  conditions  and  qualifications,  proof  that 
any,  or  all,  of  those  recitals  are  incorrect  will  not  constitute 

1  King  v.  Wilson,  1  Dillon  C.  C.  555,  1871 ;  Commercial  Bank  v.  Iola  3 
Dillon  C.  C.  R  1873.  See,  however,  on  this  subject,  Butz  v.  Muscatine.  9 
Wall.  575,  1869 ;  Olcott  v.  Supervisors,  supra. 


508  MUNICIPAL     CORPORATIONS.  [Ch.  XIV. 

a  defence  to  the  corporation  in  a  suit  on  the  bonds  or 
couj)ons,  if  it  appears  that  it  was  the  sole  province  of  the 
municipal  officers  who  executed  the  bonds  to  decide  whether 
or  not  there  had  been  an  antecedent  compliance  with  the 
regulation,  condition,  or  qualification  which  it  is  alleged 
was  not  fulfilled."1 

It  is  definitely  settled  by  this  court  that  mere  irregulari- 
ties in  the  exercise  of  the  power  will  not  avail  as  a  defence 
against  an  innocent  holder  for  value,  and  that  the  only 
defence  open  against  such  a  holder  is  the  want  of  power  to 
issue  the  bonds.  Obviously,  then,  the  most  important 
inquiries  to  be  considered  are  those  which  relate  to  the 
question,  when  the  power  exists  or  arises  ;  who  is  to  decide 
whether  it  existed  or  had  arisen  when  the  bonds  were 
issued  ;  and  what  will  estop  the  corporation  which  issued 
them  to  set  up  in  defence  a  non-compliance  with  antecedent 
or  preliminary  conditions  ;  and  it  is  these  inquiries  that 
we  shall  seek  to  illustrate  by  a  reference  to  the  decisions  of 
the  courts  in  cases  which  have  arisen  for  judgment. 

§  417.     Leading  Cases  in  the  United  States  Supreme 
Court  Noticed — The  case  of  The  Commissioners  of  Knox 
/      County  v.  Aspinwall,2  respecting  the  liability  of  municipal 
"w  ****-' and  public  corporations  on  their  negotiable  railway  aid 
.;..  fLatcL,  bonds,  deserves  to  be  particularly  noticed,  as  it  is  a  leading 
0  case  on  this  subject.     The  action  was  by  a  bona  fide  holder 

for  value  of  certain  coupons  attached  to  bonds  issued  by 
Knox  county,  Indiana,  in  payment  of  a  subscription  to  rail- 
road stock.  The  defence  was  that  the  bonds  were  not  bind- 
ing upon  the  county,  because  the  county  commissioners 
possessed  no  power  to  execute  them.  By  statute,  the 
county  commissioners  were  authorized  "to  take  stock  in 
the  railroad,  payable  in  county  bonds,  provided  a  majority 
of  the  qualified  voters  of  said  county,  at  a  designated  elec- 
tion, shall  vote  for  the  same."     The  ground  upon  which 

1  St.  Joseph  Township  v.  Rogers,  U.  S.  Supreme  Court,  December  Term, 
1872,  not  yet  reported;  opinion  by  Clifford,  J. 

In  general  throughout  this  work  the  author  has  not  referred  at  length 
in  the  text  to  particular  cases,  but  the  importance  of  this  subject  has  in- 
duced him  to  depart  to  some  extent  from  his  usual  course. 

2  Commissioners  of  Knox  County  v.  Aspinwall,  21  How.  539,  1858. 


Ch.  XIV.]  CONTRACTS.  509 

the  want  of  authority  to  execute  the  bonds  was  placed  by 
the  county  was  the  omission  to  comply  with  the  requisition 
of  the  statute  in  respect  to  the  notices  for  the  election 
(which  the  statute  provided  should  be  held  on  a  fixed  day), 
at  which  a  vote  was  to  be  taken  for  and  against  a  subscrip- 
tion to  the  stock  of  the  railroad  company.     It  was  admitted 
in  the  case  that  the  required  notices  were  not  given  :  and 
the  court  seemed  to  concede  "that  this  would  be  decisive 
against  the  authority  of  the  county  to   issue  the  bonds, 
were  it  not  for  the  question  which  underlaid  it ;  and  that  is, 
who  is  to  determine  whether  or  not  the  election  has  been 
properly  held,  and  a  majority  of  the  votes  cast  in  favor  of 
the  subscription  3"      "  Is  it,"  the  court  inquires,  "  to  be  de- 
termined by  the  court,  in  this  collateral  way,  in  every  suit 
upon  the  bond,  or  coupon  attached,  or  by  the  board  of 
commissioners,  as  a  duty  imposed  upon  it  before  making 
the  subscription?"     The  court  were  of  the  opinion,  and  so 
decided,   that  the  county  commissioners  were  the  proper 
judges  whether  or  not  a  majority  of  the  votes  in  the  county 
had  been  cast  in  favor  of  the  subscription  to  the  stock,  and 
whether  or  not  the  election  had  been  properly  held,  and 
that  these  questions  cannot  be  determined  collaterally  in 
actions  upon  the  bonds  or  coupons.     The  court,  in  assign- 
ing the  reasons  for  this   holding,  speaking  through   Mr. 
Justice  Nelson,  say:  "The  right  of  the  board  [of  county 
commissioners]  to  act  in  execution  of  the  authority  [con- 
ferred by  the  statute]  is  placed  upon  the  fact  that  a  majority 
of  the  votes  had  been  cast  in  favor  of  the  subscription  ;  and 
to  have  acted  without  first  ascertaining  it,  would  have  been 
a  clear  violation  of  duty  ;  and  the  ascertainment  of  the  fact 
was  necessarily  left  to  the  inquiry  and  judgment  of  the 
board  itself,  as  no  other  tribunal  was  provided  for  the  pur- 
pose.    The  board  was  one,  from  its  organization  and  general 
duties,  fit  and  competent  to  be  the  depository  of  the  trust 
thus  confided  to  it.     The  persons  composing  it  were  elected 
by  the  county,  and  it  was  already  invested  with  the  highest 
functions  concerning  its  general  police  and  fiscal  interei 
"  We  do  not  say,"  he  adds,  "that  the  decision  of  the  bo 
would  be  conclusive  in  a  direct  proceeding  to  inquire  into 
the  facts  previously  to  the  execution  of  the  power,  and  be- 
fore the  rights  and  interests  of  third  parties  had  attached  ; 


510  MUNICIPAL     CORPORATIONS.  [Ch.  XIV. 

but  after  the  authority  has  been  executed,  the  stock  sub- 
scribed, and  the  bonds  issued  and  in  the  hands  of  innocent 
holders,  it  would  be  too  late,  even  in  a  direct  proceeding, 
to  call  it  in  question.  Much  less  can  it  be  called  in  question 
to  the  prejudice  of  a  bona  fide  holder  of  the  bonds  in  this 
collateral  way."1 

§  418.  The  author  ventures  to  remark  that  he  believes 
the  decision  to  be  right,  and  for  the  reasons  thus  clearly 
stated  by  this  able  and  experienced  judge.  But  as  sustain- 
ing the  decision,  a  further  position  by  way  of  argument  is 
taken  which,  unless  it  is  to  be  understood  in  the  limited 
sense  herein  suggested,  he  considers  to  be  untenable,  of  a 
most  dangerous  nature,  and  subversive  of  an  important 
principle  in  the  law  of  agency  applicable  both  to  private 
and  public  agents.  That  position  is  this  :  that  a  purchaser 
of  the  bonds  had  a  right  to  assume,  from  the  mere  fact  that 
they  were  issued,  that  the  condition  on  which  the  county 
was  authorized  to  issue  them  had  been  complied  with,  and 
that  a  recital  in  the  bonds  that  the  requirements  of  the  law 
had  been  met  amounts  to  an  estoppel  in  pais  upon  the  cor- 
poration, of  which  the  officers  issuing  the  bonds  were  the 
public  agents.  That  this  is  the  position  assumed  by  the 
court,  will  appear  by  the  following  extract:  "Another 
answer,"  continues  Mr.  Justice  Nelson,  "  to  this  ground  of 
defence  is,  that  the  purchaser  of  the  bonds  had  a  right  to 
assume  that  the  vote  of  the  county,  which  was  made  a  con- 
dition to  the  grant  of  the  power,  had  been  obtained,  from 
the  fact  of  the  subscription  by  the  board  to  the  stock  of  the 
railroad  company,  and  the  issuing  of  the  bonds.  The  bonds, 
on  their  face,  import  a  compliance  with  the  law  under  which 
they  were  issued.  'This  bond,'  we  quote,  'is  issued  in 
part  payment  of  a  subscription  of  8200,000,  by  the  said 
Knox  county,  to  the  capital  stock,  &c.  by  order  of  the 
board  of  commissioners  in  pursuance  of  the  3d  section  of 
the  act,  &c.  passed  by  the  General  Assembly  of  the  State 
of  Indiana,  and  approved  January  15th,  1849.'  The  pur- 
chaser was  not  bound  to  look  further  for  evidence  of  a 
compliance  with  the  conditions  to  the  grant  of  the  poioer"' 

1  Commissioners  of  Knox  County  v.  Aspinwall,  21  How.  539,  544. 

*  11.  545.     If  by  this  it  is  meant  that  where  the  power  to  issue  bonds  is 


Ch.  XIV.]  CONTRACTS.  51} 

This  principle  has  been  reiterated  and  applied  by  the  court 
in  subsequent  cases.1     Not  withstanding  the  broad  Ia7iguag6 

given  upon  the  condition  of  a  previous  majority  vote  in  favor  of  the  uimj»- 
osition,  the  public  or  municipal  officers  can,  where  no  vote  has  been  token  jr 
the  proposition  has  Iteen  voted  dozen,  bind  the  county  by  the  issue  of  bonds 
and  false  recitals  therein,  the  author  feels  bound  respectfully  to  insist  that 
in  his  judgment,  the  principle  is  unsound,  and  certainly  it  is  one  which  will 
entail  needless  and  incalculable  injury  upon  public  and  municipal  corpora- 
tions. These  securities,  it  is  true,  are  intended  to  be  sold  in  distant  mar- 
kets, and  therefore  it  cannot  reasonably  be  required  that  purchasers  shall 
be  affected  with  irregularities,  but  they  ought  to  be  held  to  ascertain 
whether  the  substantial  precedent  conditions  of  the  power  have  been,  in  fact, 
complied  with,  and  it  ought  not  to  be  in  the  power  of  public  officers,  unless 
ibi  decision  of  this  question  is  plainly  committed  to  them,  to  bind  the 
corporation  for  which  they  act  by  their  mere  statements  of  what  is  in  point 
of  fact  untrue. 

On  grounds  similar  to  those  here  suggested  it  has  been  held  by  the 
Supreme  Court  of  Missouri  that  bonds  issued  where  an  election  is  required, 
but  none  ever  held  and  no  vote  taken,  are  \oid,  because  of  want  of  power 
to  issue  them — void  in  the  hands  of  all  persons;  but  they  may  be  validated 
by  the  legislature.  Steines  v.  Franklin  County,  48  Mo.  167,  1871.  Wagner, 
J.,  in  this  case  reviews  the  prior  adjudications  of  the  United  States  Supreme 
Court  and  of  the  Supreme  Court  of  the  State  of  Missouri,  and  limits  the 
language  used  by  the  judges  to  the  facts  before  them,  and  distinguishes 
between  the  case  of  irregularities  in  an  election  and  no  election  whatever. 
See  also  Carpenter  v.  Inhabitants  of  Lathrop,  Mo.  Sup.  Court,  1873,  not 
yet  reported. 

1  Moran  v.  Miami  County,  2  Black,  722,  724,  18G2.  Referring  to  Knox 
County  v.  Aspinwall,  the  court  observe  that  the  main  defence  was,  that  the 
commissioners  of  the  county  had  no  power  to  execute  the  bonds,  and  hence 
they  were  not  binding  upon  the  county;  but,  says  the  Supreme  Court  of  the 
United  States,  per  Wayne,  J.,  in  Moran  v.  Miami  County,  supra,  "our  an- 
swer and  judgment  was,  that  the  bonds  on  their  face  import  a  compliance 
with  the  law  under  which  they  were  issued;  and  that  the  purchasers  of 
them  were  not  bound  to  look  further  for  evidence  of  a  compliance  with  the 
conditions  annexed  to  the  grant  of  power  to  issue  them." 
"  We  think  and  adjudge  that  the  recitals  in  the  bonds  are  conclusive,  con- 
stituting an  estoppel  in  pais  upon  the  defendants  in  this  suit."  (2  Black, 
722,  724,  732.)  As  to  estoppel  in  such  cases:  Supervisors  v.  Schenck,  5 
Wall.  772,  1866;  Rogers  v.  Burlington,  3  Wall.  654;  Cincinnati  D.  Morgan, 
It>.  275;  Mercer  County  v.  Hacket,  1  lb.  83:  Meyer  o.  Muscatine,  H>.  885, 
393,  per  Swoi/iie,  J.;  Bissell  v.  Jeffersonville,  24  How.  2-<l ;  Gelpcke  v. 
Dubuque,  1  Wall.  175,  203;  Pendleton  Co.  v.  Amy,  1:1  Wall.  397,  1871;  St. 
Joseph  Township  W.Rogers,  Deer.  Term,  L872;  S.  0.,  7  Albany  Law  .lourn., 
364.  In  the  case  last  cited  .t  was  insisted  that  the  bonds  were  invalid  for 
want  of  the  required  vote.  One  of  the  answersof  the  court  to  this  objection 
was  that  "the  act  of  the  legislature  made  it  the  duty  of  the  supervisor  who 


512  MUNICIPAL     CORPORATIONS.  [Cn.  XIV. 

in  some  of  the  opinions  to  the  effect  that  where  the  'power 
exists  under  any  circumstances  in  the  corporation  to  issue 
negotiable  securities,  the  bona  fide  holder  has  the  right  to 
presume  that  they  were  duly  issued,  yet  when  the  facts  of 
the  cases  are  considered  in  which  such  language  is  used,  we 
are  unable,  after  a  careful  review  of  the  decisions  of  the 
Supreme  Court,  to  say  that  they  lay  down  the  doctrine  that 
merely  by  recital  in  the  bonds,  the  corporation  will,  under 
all  circumstances,  in  favor  of  an  innocent  holder,  be  estopped 
from  showing  that  in  point  of  fact  no  election  whatever  was 
holden,  or  that  any  other  condition  precedent  to  the  exercise 
of  the  power  has  not  been  complied  with.  If  upon  a  true 
construction  of  the  legislative  enactment,  conferring  the 
the  authority,  the  corporation  or  certain  officers,  or  a  given 
body  or  tribunal,  are  invested  with  power  to  decide  whether 
the  condition  precedent  has  been  complied  with,  then  it  may 
well  be  that  their  recital  of  their  determination  of  a  matter 
in  pais  which  they  are  authorized  to  decide,  will,  in  favor  of 
the  bond  holder  for  value,  bind  the  corporation  ;  and  to  this 
extent,  and  no  further,  as  it  seems  to  us,  have  the  decisions 
of  the  Supreme  Court  gone,  when  critically  viewed,  upon 
the  point  of  estoppel  by  mere  recital. 

§  419.  A  correct  view  of  this  subject  would  seem  to  be 
this :  Officers  are  the  agents  of  the  corporate  body  ;  and 
the  ordinary  rules  and  principles  of  the  law  of  agency  are 
applicable  to  their  acts.  Their  unauthorized  acts  are  not 
binding  upon  the  corporate  body  of  which  they  are  the 
public  agents.  Ordinarily,  their  unauthorized  representa- 
tion that  they  have  power  to  do  an  act  is  not  binding  upon 

executed  the  bonds  to  determine  the  question  whether  an  election  was  held, 
and  whether  a  majority  of  the  votes  cast  were  in  favor  of  the  subscription, 
and  inasmuch  as  he  passed  upon  that  question  and  subscribed  for  the  stock 
and  subsequently  executed  and  delivered  the  bonds,  it  was  clearly  too  late 
to  question  their  validity  where  it  appears,  as  in  this  case,  that  they  are  in 
the  hands  of  an  innocent  holder." 

Estoppel  to  set  up  irregularities  in  issue  of  bonds  by  reason  of  the  subse- 
quent payment  of  interest.  Supervisors  v.  Schenck,  5  Wall.  772.  Compare 
Marsh  v.  Fulton  Co.,  10  Wall.  676. 

Estoppel  by  retaining  proceeds  of  bonds.  Pendleton  County  v.  Amy,  18 
Wall.  297,  1871. 


Ch.  XIV.]  CONTRACTS.  513 

the  corporation  ;  that  is,  the  question  is  as  to  their  power, 
in  fact  and  in  law,  not  what  they  have  represented  it  to  be. 
The  only  exception  to  this  rule  in  addition  to  the  one  above 
suggested,  to  wit,  where  it  is  the  sole  province  of  the  officers 
who  issued  the  bonds  to  decide  whether  conditions  prece- 
dent have  been  complied  with,  is  where  both  parties  have  not- 
equal  means  of  knowledge  as  to  the  extent  and  scope  of 
their  powers,  and  where  the  particular  character  of  their 
commission  and  authority  is,  from  its  natue  and  circum- 
stances, peculiarly  known  to  the  officer  or  agent ;  in  which 
case  the  principal  will,  or  may  be  bound  by  the  false  rep- 
resentations of  the  agent  respecting  his  authority  and  its 
extent  and  scope  ;  but  where  the  authority  to  act  is  solely 
conferred  by  statute,  which,  in  effect,  is  the  letter  of  attor- 
ney of  the  officer,  all  persons  must,  at  their  peril,  see  that 
the  act  of  the  agent  on  which  he  relies  is  within  the  power 
under  which  the  agent  acts  ;  and  this  doctrine  is  recognized 
by  the  Supreme  Court  of  the  United  States  in  some  of  its 
judgments.1  Accordingly,  bonds  issued  in  violation  of  an 
express  statute  or  constitution  are  void,  though  in  the  hands 
of  innocent  holders,  for  value.2 

§  420.  So  in  a  subsequent  case,  similar  in  character, 
the  common  council  of  a  city  were,  by  virtue  of  various 
statutes,  authorized  to  subscribe  for  stock  in  a  railroad 
company,  and  to  issue  bonds  in  payment  therefor  on  the 
'petition  of  three  fourths  of  the  legal  voters  of  the  city 
Before  the  issue  of  the  bonds,  the  council  decided  that 
three-fourths  of  the  citizens  had  petitioned,  and  the  bonds 

1  The  Floyd  Acceptances,  7  Wall.  666,  1868;  Marsh  v.  Fulton  County, 
10  Wall.  676,  1870.  See,  also,  Clark  v.  Des  Moines,  19  Iowa.  199,  210, 
1865;  Treadwell  v.  Commissioners,  11  Ohio  St.  183,  1860,  reviewing  and 
criticising  Knox  Couuty  v.  Aspiuwall,  21  How.  539.  See,  also,  Gould  v. 
Sterling  (action  on  bonds),  23  K  Y.  464;  S.  C,  1  Am.  Law  Reg.  (N.  B.) 
890,  and  note  of  Prof.  Dwight ;  Starin  v.  Genoa,  23  N.  V.  452;  People  v. 
Mead,  36  N.  Y.  224.  United  States  v.  City  Bank  of  Columbus,  21  How. 
356,  1858,  is  a  very  striking  illustration  of  the  general  principle  that  a  cor- 
porate officer  cannot  bind  the  corporation  by  Ids  unauthorized  ads  or  repre- 
sentations concerning  the  authority  of  himself  or  others.  De  Voss  v.  Rich- 
mond, 7  Am.  Law  Keg.  (N.  S.)  58fJ;  S.  C,  18  Gratt.  (Va.)  339,  1868. 

3  Aspiuwall  v.  County  of  Daviess,  22  How.  864  ;  Marsh  v.  Fulton  County, 
tupra. 

33 


51 4  MUNICIPAL    CORPORATIONS.  [Ch.  XIV. 

themselves  thus  recited.  The  Supreme  Court  of  the  United 
States  held  that  the  council  was  the  tribunal  to  decide 
whether  the  requisite  number  had  petitioned ;  that  it  was 
contemplated  that  this  question,  which  was  one  of  fact, 
should  be  ascertained  and  conclusively  settled  prior  to  the 
issue  of  the  bonds  ;  and  that  when  sued  upon  the  bonds  by 
innocent  holders  for  value,  parol  testimony  was  inadmissible 
to  show  that  the  petitioners  did  not  constitute  three-fourths 
of  the  legal  voters  of  the  city.1 

1  Bissell  v.  Jeffersonville,  24  How.  (U.  S.)  287,  1860,  approving  Knox 
County  v.  Aspinwall,  21  How.  539 ;  S.  P.  Railroad  Company  v.  Evansville, 
15  Ind.  395,  1860.  This  is  clearly  right,  for  the  reason  that  the  council 
were  the  body  to  decide  the  preliminary  fact,  and  because,  also,  according 
to  the  rule  before  stated,  the  fact  was  one  not  of  a  nature  to  be  ascertained 
by  purchasers  in  the  market  to  whom  the  bonds  were  designed  to  be  sold. 

As  to  proceeding  preliminary  to  issuing  of  bonde:  Ante,  sec.  108;  Com- 
missioners v.  Nichols,  14  Ohio  St.  260;  Atchison  v.  Butcher,  3  Kansas,  304, 
1865;  Mercer  County  v.  Hacket,  1  Wall.  83;  Rogers  v.  Burligton,  3  lb.  654; 
Moran  v.  Miami  Co.  2  Black,  722;  Flagg  v.  Palmyra,  33  Mo.  440;  Common- 
wealth v.  Commissioners,  &c,  37  Pa.  St.  237 ;  compare,  Marsh  v.  Fulton 
County.  10  Wall.  676,  1870;  Treadwell  v.  Commissioners,  11  Ohio  St.  183, 
1860.  Post,  sec.  423.  Pendleton  County  v.  Amy,  13  Wall.  297;  City  of 
Lexington  v.  Butler,  14  Wall.  284 ;  Joseph  Township  «.  Rogers,  December 
Term,  1872;  S.  C.,7  Albany  Law  Journal,  364;  Grand  Chute  v.  Winegar, 
5  Wall.  572,  1872;  S.  C,  5  Chicago  Legal  News,  337. 

A  city  was  authorized  to  take  stock  in  a  railroad  company  "  on  the  peti- 
tion of  two-thirds  of  the  citizens,  who  are  freeholders,"  &c.  Bonds  of  the 
city  were  duly  issued,  signed  by  the  proper  officers  and  attested  by  the  seal 
of  the  city,  and  on  their  face  recited  that  they  were  issued  by  virtue  of  an 
ordinance  of  the  city  making  the  subscription.  The  minutes  of  the  city 
council  simply  stated  that  "the  freeholders  of  the  city,  with  great  unanimity, 
had  petitioned,"  &c.  It  was  held  that  the  city  council  were  the  proper 
judges  whether  or  not  the  required  number  had  petitioned,  and  that  the  city, 
as  against  bona  fide  holders  for  value,  was  "  concluded  "  by  the  ordinance 
"as  to  any  irregularities  that  may  have  existed  in  carrying  into  execution 
the  power  granted  to  subscribe  the  stock  and  issue  the  bonds."  Van 
Hostrup  v.  Madison  City,  1  Wall.  (U.  S.)  291,  1863;  S.  P.  Meyer  v.  Mus- 
catine (where  charter  required  "a  majority  of  two-thirds  of  the  votes 
given  »)  1  b.  384,  393 ;  Aurora  v.  West,  22  Ind.  88,  1864 ;  contra,  Peopie  v. 
Mead,  36  N.  Y.  224. 

Where  the  act  authorizing  a  municipality  to  issue  bonds  was  not  to  take 
effect  until  "approved  by  two-thirds  of  the  electors  present  at  a  city  meet- 
ing held  for  that  purpose,  and  a  copy  of  its  doings  lodged  in  the  office  of  the 
secretary  of  state  ;"  bona  fide  purchasers  of  such  bonds  are  not  bound  to  look 
beyond  the  certificate  thus  lodged,  and  are  not  affected  by  the  action  of  the 


Ch.  XIV.]  CONTRACTS.  SI 5 

§  421.  In  another  case,1  the  action  was  upon  coupons 
payable  to  bearer  belonging  to  negotiable  bonds  issued  by 
a  county  in  payment  of  stock  subscribed  in  a  railroad  com- 
pany. By  an  act  of  assembly,  the  county  commissioners 
were  authorized  to  subscribe  the  stock  and  issue  the  bonds 
only  upon  the  following  "  restrictions,  limitations,  and  con- 
ditions, and  in  no  other  manner  or  way  whatever :"' 
1.  "  After,  and  not  before,  the  amount  of  such  subscription 
shall  have  been  designated,  advised,  and  recommended  by 
a  grand  jury  of  the  county."  2,  Said  "bonds  shall,  in  no 
case,  be  sold  by  the  railroad  company  less  than  par."  3. 
That  the  acceptance  of  this  act  shall  be  deemed  the  accept- 
ance of  another  act  fixing  the  gauges  of  railroads  in  the 
county  of  Erie.  The  plaintiff  was  a  bona  fide  holder,  for 
value,  of  a  number  of  the  bonds  issued  by  the  county.  To 
defeat  a  recovery,  the  county  on  the  trial  offered  to  show, 
not  that  no  recommendation  by  a  grand  jury  was  ever 
made,  but  that  no  such  recommendation  was  made  as  the  act 

city,  refusing  at  prior  meetings  to  approve  the  act.  Society  for  Savings  v. 
New  London,  29  Conn.  174,  1860. 

Fraud  in  the  election  authorizing  the  subscription  must  be  set  up  before 
rights  have  accrued.  Butler  v.  Dunham,  27  III.  474;  People  v.  Supervisors, 
27  Cal.  655.  Further  as  to  the  construction  of  jioicers  to  aid  in  the  building 
of  railways,  see  ante,  chap.  VI. ;  sec.  104  et  seq. 

1  Mercer  County  v.  Hacket,  1  Wall.  83,  1863.  This  case,  and  the  case 
of  "Woods  v.  Lawrence  County,  1  Black,  386,  are  cited  by  Mr.  Justice 
Hunt  in  the  recent  case  of  Grand  v.  Chute  v.  Winegar,  15  Wall.  572, 
1872;  S.  C,  5  Chicago  Legal  News,  337.  The  learned  Justice  says:  "The 
same  principles  were  announced  in  Gelpcke  v.  The  City  of  Dubuque,  1  Wall. 
175,  and  in  Meyer  v.  The  City  of  Muscatine,  lb.  384.  In  the  latter  case  the 
courtsaidthat  if  the  legal  authority  was  sufficiently  comprehensive,  a  bona 
fide  holder  for  value  has  a  right  to  presume  that  all  precedent  requirements 
have  been  complied  with.  By  the  act  of  February  10,  1854$  the  legislature 
of  Wisconsin  authorized  the  supervisors  of  the  town  of  Grand  Chute  to 
make  a  plank  road  subscription  to  the  amount  of  ten  thousand  dollars. 
The  bonds  in  question  were  signed  by  the  chairman  of  the  board  of  super- 
visors of  that  town,  and  recited  that  the  subscription  had  been  made  bj 
the  supervisors  of  the  town,  and  that  these  bonds  were  issued  in  pursuance 
thereof  for  the  purpose  of  carrying  out  the  provisions  of  thai  act.  The 
plaintiff  was  the  bona  Jide  holder  for  value  of  the  bonds  in  suit,  and  his  title. 
accrued  before  their  maturity.  The  cases  cited  are  an  answer  to  the  numer- 
ous offers  to  show  want  of  compliance  with  the  forms  of  law,  or  to  show 
fraud  in  their  own  agents." 


flQ  MUNICIPAL     CORPORATIONS.  [Ca.  XIV. 

required.  The  following  was  the  recommendation:  The 
grand  jury  "  would  recommend  (omitting  the  words  'desig- 
nate and  advise')  the  commissioners  of  Mercer  county  to 
subscribe  an  amount  not  exceeding  $150,000,"—  but  not 
otherwise  designating  the  amount.  The  bonds  referred  on 
their  face  to  the  act  of  assembly  and  its  date  which  anthor- 
ized  their  issue,  and  recited  that  they  were  issued  in 
pursuance  thereof.  This  was  regarded  by  the  court  not  as 
an  offer  to  show  "  that  no  law  exists  to  authorize  their  issue, 
but  as  one  to  show  that  the  recitals  in  the  bonds  are  not 
true,  and  to  show  that  they  were  not  made  '  in  pursuance 
of  the  acts  of  assembly  '  authorizing  them  ;"  and  following 
Knox  County  v.  Aspinwall,1  it  was  adjudged  that  the 
matters  thus  offered  to  be  shown  constituted  no  defence 
against  a  bona  fide  holder,  on  the  principle  that  "where 
bonds  on  their  face  import  a  compliance  with  the  law  under 
which  they  were  issued,  the  purchaser  is  not  bound  to  look 
further."  And  following  Woods  v.  Lawrence  County,8 
it  was  also  ruled  that  it  was  no  defence  against  such  a 
holder,  that  the  bonds  were  sold  by  the  railroad  company 
less  than  par,  they  being  negotiable  and  the  plaintiff  inno- 
cent. And  it  was  also  decided  that  the  acceptance  by  the 
railroad  company  of  the  bonds  authorized  by  the  act, 
operated  per  se  as  an  acceptance  of  the  guage  law. 

§  422.     In  another  case,  authority  to  a  city  "to  take 

1  Knox  County  v.  Aspinwall,  21  How.  539. 

8  Woods  v.  Lawrence  County,  1  Black,  386.  In  "Woods  v.  Lawrence 
County,  just  cited,  it  was  also  held  that  where  the  statute  requires  the 
grand  jury  to  fix  the  amount  of  a  subscription  to  railroad  stock,  and  to  ap- 
prove of  it,  and  upon  their  report  being  filed  empowers  commissioners  to 
carry  the  same  .into  effect  by  making  its  subscription  in  the  name  of  the 
county,  and  if  these  things  be  done  agreeably  to  the  law,  the  county  can 
not  afterwards  deny  its  obligation  to  pay  the  amount  subscribed.  In  a  suit 
brought  to  recover  the  arrears  of  interest  on  such  bonds,  it  is  not  necessary 
for  the  holder  to  show  that  the  grand  jury  fixed  the  manner  and  terms  of 
paying  for  the  stock;  nor  is  it  a  defense  for  the  county  to  show  that  the 
grand  jury  omitted  to  do  so.  It  is  enough  that  the  manner  and  terms  of 
payment  were  agreed  upon  between  the  company  and  the  commissioners. 
This  case,  among  others,  was  cited  and  approved  in  Grand  Chute  v.  Wine- 
gar,  15  Wall.  572,  1872;  S.  C,  5  Chicago  Legal  News,  337. 


Ch.  XIV.]  CONTRACTS. 


517 


stock  in  any  chartered  company  for  making  a  road,  or 
roads,  to  the  said  city,"  was  held,  in  favor  of  a  bona  fide 
purchaser  of  its  bonds,  to  authorize  it  to  subscribe  to  a 
railroad  which,  by  the  terms  of  its  charter,  and  in  fact,  did 
not  terminate  at  said  city,  but  whose  nearest  terminus  was 
forty-six  miles  distant,  it  appearing  that  there  was,  at  the 
time  of  said  subscription,  another  railroad  leading  from  that 
terminus  to  the  city.1  Authority  was  given  by  the  legisla- 
ture to  the  city  of  Milwaukee  to  issue  bonds  in  aid°of  a 
railroad  company  specially  named,  "  and  any  other  railroad 
company  duly  incorporated  and  organized  for  the  purpose 
of  constructing  railroads  leading  from  the  city  of  Mil- 
waukee," &c,  and  it  was  held,  such  having  been  the  con- 
struction put  upon  it  by  the  city  authorities  at  the  time, 
that  the  power  to  issue  bonds  was  not  confined  to  companies 
then  in  existence,  but  extended  to  companies  afterwards 
created.8 

§  422a.  In  another  case,'  the  city  was  held  liable  upon 
bonds  issued  to  a  railway  company  under  the  following  cir- 
cumstances, viz.  :  the  legislature  authorized  the  city  to  sub- 
scribe on  the  condition  of  a  majority  vote ;  the  city  em- 
bodied three  conditions  in  the  proposition  submitted  to  the 

'  Van  Hostrup  v.  Madison  City,  1  Wall.  291,  1863.  See  Aurora  v.  West, 
9  Ind.  74;  S.  C,  22  Ind.  88,  96,  503.  The  decision  in  Van  Hostrup  v. 
Madison  City  was  undoubtedly  influenced  by  the  natural  desire  to  protect 
the  holders  of  the  bonds.  Doubts  cannot  but  be  entertained  that  the 
Columbus  and  Shelby  road,  distant  and  between  different  points,  was  a 
road  leading  to  Madison.     See  remarks  of  Nelson,  J. 

'  James  &  Taylor  v.  Milwaukee,  U.  S.  Supreme  Court,  December  Term, 
1872. 

In  Lynde  v.  Winnebago  County,  U.  S..  Supreme  Court,  December  Term, 
1872,  a  special  submission,  under  the  laws  of  Iowa,  to  a  popular  vote,  waa 
construed  to  give  the  requisite  authority  to  issue  the  bonds  of  the  county  to 
raise  money  to  build  a  court  house.  The  case  also  holds  that  it  waa  com- 
petent for  the  proper  county  official  (the  county  judge)  to  visit  New  York 
for  purposes  connected  with  the  disposition  of  the  bonds,  and  while  there, 
and  out  of  Ids  jurisdiction,  to  issue  and  seal  new  bonds  with  a  m  u>  seal  procured 
at  the  lime,  in  exchange  for  bonds  already  issued,  but  not  yet  put  on  the 
market,  and  it  was  so  held  although  the  statute  of  the  state  provided  that  in 
the  case  of  the  absence  of  that  officer  the  county  clerk  should  take  his  place. 

3  City  of  Lexington  v.  Butler,  14  Wall.  282,  1871. 


518  MUNICIPAL    CORPORxVTIONS.  [Cn.   XIV. 

voters,  one  of  which  was  that  $1,000,000  should  be  sub- 
scribed by  other  parties ;  the  vote  carried ;  other  parties 
did  not  subscribe  the  $1,000,000;  the  city  refused  to  sub- 
scribe and  issue  bonds,  but  was  compelled  to  do  so  by  a 
mandamus  of  an  inferior  court,  whose  judgment  was  after- 
wards reversed  by  the  Court  of  Appeals  of  the  state,  which 
held  that  the  city  had  no  authority  to  take  the  stock  or  issue 
the  bonds  until  the  $1,000,000  had  b<jen  subscribed  by  other 
parties.  Meanwhile,  however,  bonds  were  issued  by  the 
city,  bearing  its  seal  and  signed  by  its  mayor  and  clerk,  re- 
citing that  they  were  duly  issued  under  a  specified  act  of 
the  general  assembly. 

The  Supreme  Court  of  the  United  States  held  that  a  bona 
fide  holder  for  value  of  these  bonds,  who  had  no  actual 
notice  of  the  facts  relied  on  for  a  defence,  could  recover 
thereon.  Mr.  Justice  Clifford,  delivering  the  opinion  of 
the  court,  makes  use  of  this  language  in  slating  the  ground 
of  the  judgment:  "Admitted,  as  it  is,  that  the  corporation 
defendants  possessed  the  power  to  subscribe  for  the  stock 
and  issue  the  bonds,  it  is  clear  that  the  plaintiff  is  entitled 
to  recover  upon  the  merits,  as  the  repeated  decisions  of  this 
court  have  established  the  rule  that  when  a  corporation  has 
power  under  any  circumstances  to  issue  negotiable  securities, 
the  bona  fide  holder  has  a  right  to  presume  that  they  were 
issued  under  the  circumstances  which  give  the  requisite 
authority,  and  that  they  are  no  more  liable  to  be  impeached 
in  the  hands  of  such  a  holder  than  any  other  commercial 
paper."  By  the  expression  that  it  is  admitted  that  the  city 
"  possessed  the  power  to  subscribe  for  the  stock  and  to  issue 
the  bonds,"  reference  is  undoubtedly  made  to  the  act  of  the 
legislature  which  gave  this  power  on  condition  of  a  ma- 
jority vote,  and  possibly  to  the  fact  that  it  was  admitted  in 
the  plea  that  the  vote  was  cast  in  favor  of  the  subscription, 
for  otherwise  it  seems  to  have  been  denied  that  the  power 
existed  ;  and  that  it  did  not  exist  as  between  the  city  and  the 
railroad  corporation  was  decided  by  the  Court  of  Appeals 
of  the  state.  The  substance  of  the  decision  of  the  United 
States  Supreme  Court  in  this  case  would  seem  to  be  that  a 
bona  fide  purchaser  of  the  bonds  had  a  right  to  presume  that 
the  condition  annexed  by  the  city  as  to  the  $1,000,000  of 
other  subscriptions  had  been  complied  with,  and  thus  viewed 


Ch.  XIV.]  CONTRACTS.  519 

the  judgment  of  the  court  rests  upon  grounds  whose  sound- 
ness cannot  admit  of  question.  It  is  not  an  authority  upon 
its  essential  facts  in  favor  of  the  proposition  that  if  the 
bonds  had  been  issued  without  any  vote,  or  attempt  at  a 
vote,  they  would  have  been  binding  in  the  absence  of  estop- 
pel other  than  by  recitals  or  other  ground  of  liability. 

§  422b.  In  another  case,1  the  authority  to  subscribe  to 
the  stock  of  the  company  was  given  on  condition  that  the 
county  should  so  vote  b}7  a  majority  of  real  estate  holders 
residing  therein.  A  subscription  was  made  in  1853,  and  a 
certiticate  of  stock  issued  to  the  county,  which  was  received 
by  it  and  still  owned  by  it  in  1869,  when  suit  was  brought. 
It  did  not  appear  that  the  bonds  contained  any  recitals  that 
conditions  precedent  had  been  complied  with,  or  that  the 
county  had  subsequently  levied  taxes  to  pay  interest  on  the 
bonds.  The  county  set  up  as  a  defence  that  there  was  no 
power  to  issue  the  bonds,  because  no  vote  of  the  people  had 
ever  been  taken.  The  plaintiff  being  a  bona  fide  holder,  it 
was  held,  that  he  was  entitled  to  recover,  and  that  the 
county  was  estopped  to  set  up  that  no  vote  was  had.  The 
ground  of  the  estoppel  is  thus  stated  by  Mr.  Justice  Strong : 
"The  county  received  in  exchange  for  the  bonds  a  certificate 
of  the  stock  of  the  railroad  company,  which  it  held  about 
seventeen  years  before  the  present  suit  was  brought,  and 
which  it  still  holds.  Having  exchanged  the  bonds  for  the 
stock,  we  think  the  county  cannot  retain  the  proceeds  of 
the  exchange,  and  assert  against  a  purchaser  of  the  bonds 
for  value,  that  though  the  legislature  empowered  it  to  make 
them,  and  put  them  upon  the  market,  upon  certain  con- 
ditions, they  were  issued  in  disregard  of  the  conditions." 

It  will  be  observed  that  if  the  court  had  been  of  opinion 
that  the  bonds  were  enforceable  in  the  hands  of  a  holder  foi 
value  though  no  election  had  in  fact  ever  been  held,  the  case 
would  naturally  have  been  put  upon  that  ground. 

§  423.  State  Court  Decisions  Referred  to. — The  au- 
thority to  subscribe  to  the  stock  of  a  railroad  corporation 
may  be  made  conditional  on  certain  previous  steps  being 

1  Pendleton  County  v.  Amy.  13  Wall.  297,  1871. 


520  MUNICIPAL     CORPORATIONS.  [Ch.  XIV. 

taken,  as,  for  example,  a  prior  authorization  of  the  act  by 
a  majority  of  the  qualified  voters  of  the  municipality  or 
district  to  be  affected,  or  a  recommendation  in  its  favor  and 
a  designation  of  the  amount  by  a  grand  jury,  and  the  statute 
may  be  so  framed  as  to  evince  the  legislative  intention  to  be, 
that  no  'power  to  subscribe  or  issue  bonds  shall  exist  unless 
this  be  done.1  Thus,  where  the  act  authorizing  a  town  to 
borrow  money  to  pay  for  the  stock  subscribed  expressly 

1  Mercer  County  v.  Pittsburg  &  Erie  Railroad  Company,  27  Pa.  St.  389, 
1856;  Mercer  County  v.  Hacket,  1  Wall.  83;  Aurora  v.  West,  22  Ind.  88, 
503,  1864.     Ante,  sec.  104,  et  seq.     City  and  County  of  St.  Louis  v.  Alexan- 
der, 23  Mo.  483,  1856.      In  this  last  case  the  provision  requiring  a  submis- 
sion   of    the    question    to    the    voters    "before    the  subscription    hereby 
authorized  shall  be  made,"  was  held  not  merely  directory,  but  mandatory. 
Where  the  enabling  act  requires  the  amount  to  be  specified,  a  vote  not 
specifying  definitely  the  amount  is,  as  to  the  immediate  parties,  void.  State 
v.  Saline  County,  45  Mo.  242,  1870;  following,  Mercer  County  v.  Pittsburg, 
&c.  Railroad  Company,  27  Pa.  St.  389,  and  Starin  v.  Genoa,  27  N.  Y.  439 
(see  infra),  and  distinguishing  Knox  County  v.  Aspinwall,   21  How.  539, 
and  Flagg  ft  Palmyra,  33  Mo.  440.     It  should  be  remarked,  however,  that 
the  case  above  referred  to  (State  v.  Saline  County,  45  Mo.  242,  1870 j  was 
mandamus  to  compel  the  relator  to  deliver  the  bonds  and  to  assess  taxes  to 
pay  interest  on  bonds  which  had  been  issued,  and  the  writ  was  denied  because 
the  amount  of  bonds  to  be  issued  was  not  specified ;  but  subsequently,  in  The 
State  v.  Saline  County,  48  Mo.  390,  1871,  it  was  held  that  such  bonds,  when 
in  the  hands  of  an  innocent  holder  for  value,  could  be  collected.  What,  in  the 
opinion  of  the  Supreme  Court  of  Missouri,  such  a  holder  must  show  in  the 
way  of  compliance  with  precedent  conditions,  in  order  to  recover,  see  the 
recent  case  of  Carpenter  v.  Inhabitants  of  Lathrop,  1873,  not  yet  reported. 
This  case  seems  in  spirit  if  not  in  effect  to  depart  from  the  earlier  cases  in 
that  court  upon  this  subject.     See  Railroad  Company  v.  Platte  County,  42 
Mo.  171,  where  permissive  words  respecting  an  election  to  authorize  sub- 
scriptions were  held  to  be  imperative.     In  the  Railroad  Company  v.  Bu 
chanan  County,    39   Mo  485,   the  words  that  the  County  Court,  after  an 
affirmative  vote  by  the  people,  ''shall  have  power  to  subscribe,"  were  held 
to  leave  it  discretionary  with  the  court  whether  to  subscribe  or  not.    In  the 
case  of  the  People  ex  rel.  v.  Tazewell  County,  22  111.  147,  it  was  held,  under 
the  general  law  of  the  state,  that  it  was  discretionary  whether  the  county 
should  subscribe  all  or  but  a  portion  of  the  amount  voted  by  the  citizens, 
and  that  county  authorities  might  impose  any  proper  conditions  they  might 
choose.     So  where  the  legislature,  without  conditions,  provides  for  submit- 
ting the  question  of  subscription  to  the  voters  of  a  township,  the  electors 
have  the  power  to  vote  to  subscribe  on  any  conditions  they  may  see  proper 
to  annex.     People  v.  Dutcher,  111.  Sup.  Court,  May,    1871 ;  see  also  People 
v.  Logan  County,  45  111.   139;  Veeder  v.   Lima,   19   Wis.  280,1865.     Potstv 
chap.  XX. 


Ch.  xiy.j  contracts.  521 

provided  that  the  officers  thereof*  should  fc'have  no  power" 
to  do  so  until  the  written  assent  of  two-thirds  of  the 
resident  tax-payers  had  been  obtained,  this  was  held  a  con- 
dition precedent,  without  which  the  power  did  not  exist.1 

1  Starin  <o.  Genoa,  23  1ST.  Y.  439,  1861;  Gould  v.  Sterling-,  To.  439,  456; 
distinguished,  on  this  point,  from  Bank  of  Rome  v.  Village  of  Rome,  19  N. 
Y.  20.  Under  the  act  it  was  held  that  the  onus  was  on  the  plaintiff  to 
show  affirmatively  the  written  assent  of  the  requisite  number  of  tax-payers; 
and  the  manner  in  which  this  must  be  shown  is  considered  at  length.  But 
see  Bissell  v.  Jeffersonville,  24  How.  287;  Knox  County  v.  Aspinwall,  21 
How.  539;  Mercer  County  v.  Hacket,  1  Wall.  83,  heretofore  referred  to.  In 
the  People  v.  Mead,  36  N.  Y.  224,  1867,  the  decision  in  Starin  v.  Genoa, 
and  Gould  v.  Sterling,  above  cited,  was  adhered  to  by  the  Court  of  Appeals, 
though  it  was  admitted  that  a  contrary  ruling  as  to  the  evidence  of  the 
assent  of  the  tax-payers,  had  been  made  by  the  Supreme  Court  of  the 
United  States  in  favor  of  similar  bonds  in  the  hands  of  bona  fide  holders, 
and  the  case  was  distinguished  from  Murdock  v.  Aiken,  and  Ross  v.  Curtis, 
31  N.  Y.  606.  Illustrating  text,  see  Benson  v.  Mayor,  &c.  of  Albany,  24 
Barb.  248. 

Where  the  statute  gives  the  power  to  issue  bonds  when  a  majority  of 
the  tax-payers  whose  names  appear  upon  the  last  preceding  tax  list  or 
assessment  roll  as  owning  a  majority  of  the  taxable  property  in  the  cor- 
porate limits,  make  application  to  the  county  judge,  by  petition,  &c, 
such  a  petition  is  essential  to  to  the  jurisdiction  of  the  county  judge, 
and  the  authority  conferred  by  the  act  will,  on  certiorari,  be  required  to 
be  exercised  in  strict  conformity  with  the  act  in  its  letter  and  spirit. 
The  petition,  it  was  held,  must  be  that  of  the  tax-payers,  and  it  is 
erroneous  to  count  as  petitioners  those  whose  names  arc  affixed,  in  their 
absence,  under  previous  verbal  authority.  In  such  proceeding-,  where  tin  re 
are  no  provisions  to  the  contrary,  competent  common  law  evidence  of  the 
facts  to  be  established  should  be  produced  before  the  county  judge,  and 
this  officer  cannot  act  upon  his  personal  knowledge.  The  People  v.  Smith, 
45  N.  Y.  772,  1871. 

By  its  charter  a  city  was  authorized  to  take  stock  in  railroads,  "  provided, 
that  no  stock  shall  be  subscribed  or  taken  by  the  common  council,  unless 
upon  the  petition  of  two-thirds  of  the  residents  of  said  city,  who  arc  free- 
holders of  said  city."  It  was  held,  in  an  action  by  the  railroad  company 
against  the  city  on  the  contract  of  subscription,  that  it  was  the  duty  of  the 
common  council  to  determine  whether  the  requisite  number  of  the  free- 
nolders  of  the  city  had  petitioned  for  the  subsciiption,  no  other  tribunal 
having  been  provided  for  that  purpose;  and  having  passed  upon  that  ques- 
tion their  determination  is  conclusive,  unless  it  may  be  set  aside  in  some 
direct  proceeding  for  that  purpose:  Railroad  Company  v.  Evansville,  15 
Ind.  395,  1860;  following  and  applying,  Knox  County  0.  Aspinwall,  21  How. 
539;  see,  also,  Bissell  v.  Jeffersonville,  24  How.  287,  1860;  Mercer  County 
t.   Hacket,    1  Wall.  83;  compare,  however,  Veeder  v.  Lima,  19  Wis.  280 


522  MUNICIPAL     CORPORATIONS.  [Ch.  XIV, 

§  424.  So,  under  an  act  providing  "that  no  subscrip- 
tion or  purchase  of  stock  shall  be  made,  or  bonds  issued, 
by  any  county  or  city,  creating  a  debt  for  the  payment  of 
such  subscription,  unless  a  majority  of  the  qualified,  voters 
of  the  county  or  city  shall  vote  for  the  same,"  it  was  held 
that  bonds  issued  without  an  election,  or  where  the  election 
was  called  by  the  wrong  authority  (as  by  the  county  court 
instead  of  the  county  board  of  supervisors),  are  void,  for  ' 
want  of  power  to  issue  them,  in  whose  hands  soever  they 
may  be,  and  are  not  validated  by  the  levy  of  taxes  and  the 
payment  of  interest  thereon.1  But  this  view  was  denied  to 
be  sound  by  the  Supreme  Court  of  the  United  States,  which 

1805;  Duanesburg  v.  Jenkins,  40  Barb.  574;  Society,  &c.  v.  New  London, 
29  Conn.  174;  State  v.  Saline  County,  45  Mo.  242,  1870.  Subscriptions  to 
turnpike  roads  by  the  county  judge,  under  acts  of  the  legislature,  were  held 
unauthorized  and  void,  it  being  admitted  that  an  amount  of  stock  sufficient, 
with  the  aid  of  county  subscriptions,  to  complete  each  mile  of  road,  had 
not  been  taken  by  private  subscription,  as  required  by  the  statutes.  Clay  v. 
County,  4  Bush  (Ky.)  154. 

1  Marshall  County  v.  Cook,  38  111.  44,  1865,  commenting  on  and  distin- 
guishing Mercer  County  v.  Hacket,  1  Wall,  83,  and  Gelpcke  v.  Dubuque, 
lb.  175.  See,  also,  Shoemaker  v.  Goshen,  14  Ohio  St.  5G9;  Berliner  v. 
Waterloo,  14  Wis.  378;  Veeder  v.  Lima,  19  Wis.  280,  1865;  Dunnovan  v. 
Green,  57  111.  30;  St.  Joseph  Township  v.  Rogers,  U.  S.  Supreme  Court, 
December  Term,  1872;  S.  P.  as  to  ratification,  Marsh  v.  Fulton  County,  10 
Wall.  676,  1870.  The  corporation  is  estopped — where  the  power  to  issue 
existed — from  setting  up  irregularities  in  the  issue  of  the  bonds,  after  re- 
peated payments  of  interest  thereon.  Keithsburg  v.  Frick,  34  111.  405; 
Railroad  Company  v.  Marion  County,  36  Mo.  294;  Mercer  County  v.  Hub- 
bard, 45  111.  139;  Beloit  v.  Morgan,  7  Wall.  619,  1868;  Schenck  v.  Super- 
visors, 5  Wall.  772,  1866 ;  compare,  Marsh  v.  Fulton  County,  10  Wall.  676. 
The  municipal  authorities,  on  mandamus  or  other  proceedings  to  compeL 
them  to  make  subscription  to  the  railroad  company,  may  show  that  the 
election  was  influenced  by  it  and  its  employes,  by  bribery  and  corruption. 
People  v.  Supervisors,  27  Cal.  655,  1865;  Butler  ».  Dunham,  27  111.  474. 
Fost,  chap.  XX. 

Defective  subscript  io?is  may,  of*  course,  be  ratified  by  the  legislature  in  all 
cases  where  the  legislature  could  originally  have  conferred  the  power. 
Keithsburg  v.  Frick,  supra  ;  Copes  v.  Charleston,  10  Rich.  (So.  Car.)  Law, 
491;  McMillen  v.  Boyles,  6  Iowa,  304;  lb.  394;  Gelpcke  v.  Dubuque,  1 
Wall.  220  (note  statute  there  construed);  People  v.  Mitchell,  35  N.  Y.  CM  j 
Thompson  v.  Lee  County,  3  Wall.  327;  Bassv.  Columbus,  30  Geo.  845,  1860; 
Bissell  v.  Jefl'ersonville,  24  How.  287,  1860 ;  Campbell  v.  Kenosha,  5  Wall. 
194,  1866;  City  v.  Lamson,  9  Wall.  477,  1869.  Ante,  sees.  42-44.  Steines  v. 
Franklin  County,  48  Mo.  167,  1871;  Knapp  v.  Grant,  27  Wis   147,  1870. 


■I 


Cfl.  XIV.]  CONTRACTS.  503 

decided,  that  an  innocent  holder  for  value  of  such  bonds 
was  entitled  to  recover  upon  them.  The  only  defect  in  the 
execution  of  the  power  was  that  the  election  was  ordered  by 
the  wrong  authority,  but  the  Supreme  Court  held  that  the 
conduct  of  the  county  in  retaining  the  stock,  and  in  levying 
taxes  and  paying  interest  for  a  series  of  years,  estopped  it 
to  set  up  as  a  defence  that  the  bonds  were  illegal,  and  it 
refused  to  follow  the  judgment  of  the  Supreme  Court  of  the 
State,  which  had  held  the  same  issue  of  bonds  to  be  void.1 

§  425.  In  a  case  in  Ohio,  where  the  legislature  author- 
ized "the  county  commissioners  of  any  county  through  or 
in  which  a  railroad  might  be  located,  to  subscribe  to  the 
capital  stock  of  the  said  company,"  and,  for  the  purpose  of 
paying  therefor,  "to  borrow  the  necessary  amount  of 
money,  for  which  they  shall  issue  their  negotiable  bonds," 
&c,  it  was  decided  to  be  a  defence  to  an  action  on  the  bonds 
(though  by  a  bona  fide  holder),  that  the  railroad  was 
"never  made  or  located  through  or  in  the  county  ;"  that  it 
was  "  located  and  completed  so  as  not  to  touch  the  county." 
The  defence  was  held  good,  upon  the  ground  that  the 
authority  to  issue  the  bonds  never  existed.8 

§  426.  It  may  be  remarked,  in  conclusion,  that  this 
general  survey  of  the  adjudications  shows  some  difference 

1  Supervisors  of  Marshall  County  v.  Schenck,  5  Wall.  772,  1866. 

a  Treadwell  v.  Commissioners,  11  Ohio  St.  183,  1860,  reviewing  and 
criticising,  Aspinwall  v.  Commissioners  of  Knox  County,  21  How.  (U.  S.) 
539,  approved  in  Bissell  v.  Jeffersonville,  24  How.  (U.  S.)  287,  1860.  In 
Veeder  v.  Lima,  19  Wis.  280,  1863,  Treadwell  v.  Commissioners,  and  Gould 
0.  Sterling,  before  cited,  are  approved,  and  Aspinwall  v.  Commissioners,  and 
Moran  v.  Miami  County,  are  criticised.  Compare  State,  &c.  v.  Van  Home, 
7  Ohio  St.  327;  re-affirmed,  State  Trustees,  &c,  8  Ohio  St.  894,  401.  The 
two  cases  last  cited  (7  Ohio  St.  327,  8  lb.  394),  do  not  Intend,  probably,  to 
assert  the  principle  that  the  non-action  of  the  tax-payers  or  inhabitants  will 
supply  a  want  of  power,  in  the  just  sense  of  that  expression,  in  the  trustees 
to  subscribe  for  the  stock,  or  estop  the  quasi  corporation  from  making  the 
defence  of  ultra  vires,  if  it  existed. 

Under  a  charter  authorizing  counties  "through  which"  a  given  railroad 
"may  pass"  to  subscribe  to  its  stock,  it  was  held  that  a  county  between 
the  termini  of  the  road  might  subscribe  without  waiting  until  the  route  was 
located,  or  built  within  tie  county.  Woods  v.  Lawrence  County,  1  Black, 
386,  1861. 


C24  MUNICIPAL     CORPORATIONS.  [Ch.  XIV. 

of  judicial  opinion  (chiefly  in  cases  involving  the  rights  of 
innocent  holders  of  negotiable  municipal  securities)  respect- 
ing the  evidence  of  the  corapliauce  with  conditions  pre- 
cedent, and  as  to  what  will  estop  the  municipality  from 
showing  a  non-compliance  in  fact  with  such  conditions. 
Yet,  aside  from  these  differences,  the  courts  all  agree  that 
such  a  corporation  may  successfully  defend  against  the 
bonds  in  whosesoever  hands  they  may  be,  if  its  officers  or 
agents,  who  assumed  to  issue  them,  had  no  power  to  do  so.1 
The  officers  of  such  corporations  possess  no  general  power 
to  bind  them,  and  have  no  authority  except  such  as  the 
legislature  confers.  If  the  statute  authorizes  such  a  cor- 
poration to  issue  its  bonds  only  when  the  measure  is  sanc- 
tioned by  a  majority  of  the  voters,  bonds  issued  without 
such  a  sanction  (either  in  fact  or  according  to  the  decision 
of  authorized  officers  or  some  authorized  body  or  tribunal), 
or  when  voted  to  one  corporation  and  issued  to  another,  are 
void,  into  whosesoever  hands  they  may  come.2  This  is  the 
l  sound  and  true  rule  of  law  on  this  subject,  and  the  one 
fa  a*  which  has  had  the  uniform  approval  of  the  state  courts  in 
"  I  J  '"""this  country,  and  it  has  also  received  the  high  sanction  of 
'  the  Supreme  Court  of  the  United  States.8  The  distinction, 
however,  must  be  remembered,  between  want  of  power  to 
issue  the  bonds  and  irregularities  in  the  exercise  of  the 
power,  which  are  unavailing  against  the  bona  fide  holder, 
without  notice  of  the  irregularity. 

1  Ante,  chap.  VI.  sec.  108.  The  provisions  of  a  railroad  charter  made 
it  lawful  for  certain  counties  to  subscribe  stock  on  a  majority  vote.  and.  on 
such  vote  being  had,  made  it  the  duty  of  the  county  commissioners  to  sub- 
scribe for  stock  and  issue  bonds  therefor.  Accordingly  a  vote  was  had, 
resulting  in  favor  of  a  subscription ;  after  the  vote,  but  before  the  sub- 
scription was  actually  made  and  the  bonds  issued,  counties  were  prohibited 
by  law  from  subscribing  for  stock,  unless  paid  for  in  cash.  Held,  that  the 
power  to  subscribe  and  the  vote  did  not  constitute  a  contract  within  the 
meaning  of  the  clause  of  the  constitution  making  contracts  inviolable ;  that 
until  the  subscription  was  actually  made  the  contract  was  unexecuted,  and 
that  bonds  thus  issued  were  void,  even  in  the  hands  of  innocent  holders  for 
value.  Aspinwall  v.  County  of  Jo  Daviess,  22  How.  (U.  S.)  364,  1859.  Ante, 
sec.  42 ;  Marsh  v.  Fulton  County,  10  Wall.  676. 

2  Ante,  chap.  VI.  sec.  108. 

3  Marsh  v.  Fulton  County,  10  Wall.  676,  1870.  Speaking  of  this  sub- 
ject, Mr.  Justice  Field,  in  the  case  just  cited,  delivering  the  opinion  of  the 


Ch.  XIV.]  CONTRACTS.  505 

Ccurt,  says:  "But  it  is  earnestly  contended  that  the  plaintiff  was  an  in- 
nocent purchaser  of  the  bonds,  without  notiee  of  their  invalidity.  If  such 
were  the  fact,  we  do  not  perceive  how  it  could  affect  the  liability  of  the 
county  of  Fulton.  This  is  not  a  case  where  the  party  executing  the  instru- 
ments possessed  a  general  capacity  to  contract,  and  where  the  instruments 
might,  for  such  reason,  be  taken  without  special  inquiry  into  their  validity. 
It  is  a  case  where  the  power  to  contract  never  existed — where  the  instru- 
ments might,  with  equal  authority,  have  been  issued  by  any  other  citizen  of 
the  county.  It  is  a  case,  too,  where  the  holder  was  bound  to  look  to  the 
action  of  the  officers  of  the  county  and  ascertain  whether  the  law  had  been 
so  far  followed  by  them  as  to  justify  the  issue  of  the  bonds.  The  authority 
to  contract  must  exist  before  any  protection  as  innocent  purchaser  can  be 
claimed  by  the  holder.  This  is  the  law  even  as  respects  commercial  paper, 
alleged  to  have  been  issued  under  a  delegated  authority,  and  is  stated  in 
the  case  of  Floyd  Acceptances,  7  Wall.  666.  In  speaking  of  notes  and  bills 
issued  or  accepted  by  an  agent,  acting  under  a  general  or  special  power,  the 
court  says:  'In  each  case  the  person  dealing  with  the  agent,  knowing  that 
he  acts  only  by  virtue  of  a  delegated  power,  must,  at  his  peril,  see  that  the 
paper  on  which  he  relies  comes  within  the  power  under  which  the  agent 
acts.  And  this  applies  to  every  person  who  takes  the  paper  afterwards; 
for  it  is  to  be  kept  in  mind  that  the  protection  which  commercial  usage 
throws  around  negotiable  paper  cannot  be  used  to  establish  the  authority 
by  which  it  was  originally  issued.'"  And  in  this  case  the  bonds  of  the 
county  of  Fulton,  though  negotiable  in  form,  and  not  disclosing  or  reciting 
their  purpose  or  origin,  were  held  void,  in  the  hands  of  bona  fide  holders, 
for  want  of  authority  in  the  county  to  issue  them — having  been  voted  to 
one  corporation  and  delivered  to  (according  to  the  view  of  the  court) 
another  and  distinct  corporation.  See  Society,  &c.  v.  New  London,  29 
Coim.  174;  compare,  People  v.  Mead,  .36  N.  Y.  224;  Adams  v.  Railroad 
Company,  2  Coldw.  (Tenn.)  G45 ;  Lynde  v.  Winnebago  County,  Sup.  Ct. 
U.  S.  1872  ;  Steines  v.  Franklin  County,  48  Mo.  167,  1871 ;  Super,  v.  Weider, 
5  Chicago  Legal  News,  265. 

Defences  grounded  on  corporate  neglect,  or  technical  in  their  nature,  are 
not  favored  when  the  bonds  are  in  innocent  hands.  Maddox  v.  Graham,  2 
Met.  (Ky.)  56;  Commonwealth  v.  Pittsburgh,  43  Pa.  St.  391  ;  San  Antonio 
v.  Lane,  32  Texas,  405.  The  issue  of  the  bonds  proves  that  conditions 
piecedent,  imposed  by  ordinance,  have  been  complied  with  or  waived. 
Commonwealth  v.  Pittsburgh,  supra;  Gilchrist  v.  Little  Rock,  1  Dillon  C. 
C.  261. 

The  Supreme  Court  of  the  United  States  1ms  very  recently  held,  in  an 
action  on  negotiable  bonds  issued  by  a  public  corporation,  that  where  the 
defendant  has  shown  fraud  in  the  origin  or  inception  of  the  instruments,  tin* 
will  throw  upon  the  holder  the  burden  of  showing  that  he  gave  value 
for  them  before  maturity.  '  Smith  v.  Sac  County,  11  Wall.  139,  1870, 
Clifford,  J.,  dissenting. 

When  special  authority  to  oorroio  money  or  to  subscribe  to  the  stock  of  a 
railroad  company  will  impliedly  repeal  existing  charter  limitations  upon  the 


526 


MUNICIPAL    CORPORATIONS. 


[Ch.  XIV. 


amount  of  indebtedness  that  may  be  contracted  by  a  municipabty,  or  upon 
the  rate  of  taxation.  See  Amey  v.  Allegheny  City,  24  How.  364,  1860; 
Butz  v.  Muscatine,  8  Wall.  575,  1869.  Ante,  sec.  107,  and  cases  there  cited. 
Mode  of  enforcing  payment  of  municipal  bonds.  See  chapter  on  Manda- 
mus, post.  The  authority  to  levy  and  collect  special  taxes  to  pay  bonds 
authorized  to  be  issued  cannot  be  withdrawn  or  repealed  by  the  legislature 
to  the  prejudice  of  the  holders  of  such  bonds.  Von  Hoffman  v.  Quincy,  4 
Wall.  535,  1866;  ante,  chap.  IV. ;  post,  chap.  XX. 


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